     Case: 09-50951     Document: 00511221805          Page: 1    Date Filed: 09/01/2010




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

                                                  FILED
                                                                         September 1, 2010

                                       No. 09-50951                         Lyle W. Cayce
                                                                                 Clerk

LUCILLE MCKEE, also known as Lucille McKee Mackey,

                                                   Plaintiff - Appellee
v.

KAREN LANG; SUSAN GREEN-COX; KATHY ROBINSON,

                                                   Defendants - Appellants




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:08-CV-105


Before CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        This appeal arises from appellee Lucille McKee’s (“McKee”) suit against
appellants Karen Lang (“Lang”), Susan Green-Cox (“Cox”), and Kathy Robinson
(“Robinson”) alleging violations of 42 U.S.C. § 1985(3). Appellants take this
interlocutory appeal from the district court’s denial of their motion to dismiss on
the basis of qualified immunity. They contend the district court erred when it
concluded: (1) qualified immunity does not apply to claims arising under 42
U.S.C. § 1985(3), and (2) even if it could apply, appellants were not entitled to

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-50951

immunity in light of McKee’s specific § 1985(3) allegations. We hold that the
district court’s conclusion as to the availability of qualified immunity in §
1985(3) suits runs contrary to the binding precedent of this court. Additionally,
we hold that the district court erred as a matter of law when it concluded the
course of conduct alleged in McKee’s complaint was objectively unreasonable
under clearly-established law. Accordingly, we REVERSE and REMAND for
entry of judgment in favor of appellants.
             I. FACTUAL & PROCEDURAL BACKGROUND
      McKee worked as a teacher’s aide for Midland Independent School District
(“Midland”). McKee alleges that Midland and the appellants conspired to violate
her civil rights in violation of 42 U.S.C. § 1985(3) by subjecting her to a hostile
work environment and by retaliating against her for both opposing unlawful
conduct and filing a charge with the Equal Employment Opportunity
Commission in November 2007. Specifically, McKee’s complaint alleges three
instances of injurious conduct. First, she claims Lang and Cox, her co-workers,
referred to her as a “token” sometime during May 2007. Second, she claims
Robinson, the supervising principal, failed to take corrective action once
informed of the “token” comment. Third, she alleges that she was subjected to
a screening of a “black-face” video in a common area occupied by students and
fellow employees in December 2007. She alleges in her complaint that Cox was
singly responsible for the screening of the video. McKee made no other factual
allegations regarding appellants in her complaint or as part of her response to
appellants’ motion to dismiss.
      McKee sued Midland in federal district court. In her second amended
complaint against Midland she added Lang, Cox, and Robinson as co-defendants.
The second amended complaint alleged violations of Title VII and 42 U.S.C. §
1981 against Midland and a violation of 42 U.S.C. § 1985(3) against all of the
defendants. The district court granted Midland’s motion for partial dismissal,

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dismissing the § 1981 and 1985(3) claims against it and holding as to the §
1985(3) claim that Midland and the appellants could not conspire to deprive
McKee of her civil rights as they constituted a single entity under the
intracorporate conspiracy doctrine.
       However, the district court denied the individual defendants’ (the only
appellants here) motion to dismiss the 1985(3) claims against them. The court
held that (1) qualified immunity does not apply to § 1985(3) claims and, in the
alternative, (2) McKee’s complaint demonstrates a course of conduct that was
objectively unreasonable in light of clearly established law.1 Appellants timely
appealed.
                           II. STANDARD OF REVIEW
       The court has appellate jurisdiction to review a district court’s order
denying a motion to dismiss on the basis of qualified immunity to the extent that
the it turns on an issue of law. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245,
251 (5th Cir. 2005).       We review the district court’s denial of the qualified
immunity defense de novo, accepting all well-pleaded facts as true and viewing
them in the light most favorable to the plaintiff.                 Id. at 251-52.      In an
interlocutory appeal of a denial of qualified immunity, we may only consider
whether “a certain course of conduct would, as a matter of law, be objectively
unreasonable in light of clearly established law.” Kinney v. Weaver, 367 F.3d
337, 346 (5th Cir. 2004) (en banc).
                                   III. DISCUSSION
       Appellants contend: (1) the district court erred when it concluded qualified
immunity does not apply to claims arising under 42 U.S.C. § 1985(3), and (2)


       1
          The district court also instructed McKee, within thirty days and on penalty of
dismissal, to file a more definite statement of her § 1985(3) claim showing a basis independent
of Title VII or § 1981. McKee did not abide by this order, but the court did not enforce its
penalty. Approximately sixty days after ordering her to amend, it stayed the case pending
appeal.

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they were entitled to immunity under the factual allegations advanced in
McKee’s complaint. McKee opposes both contentions and submits that this court
does not have jurisdiction to determine whether appellants are entitled to
qualified immunity. We address each issue in turn.
A. The Availability of Interlocutory Jurisdiction
      McKee alleges that the court is without jurisdiction to hear this
interlocutory appeal. Her argument is without merit. The district court’s order
dispositively addresses the question of qualified immunity when it states: “The
Defendants’ Motion to Dismiss . . . is DENIED IN PART because the Employee
Defendants are not entitled to qualified immunity on Plaintiff’s 42 U.S.C. §
1985(3) claim.” Though the district court granted McKee leave to amend, it only
did so to allow her to clarify what deprivation she suffered rather than to add to
the facts underlying appellants’ alleged conspiracy.           The district court
definitively denied qualified immunity to appellants, subjecting them to further
litigation.   Thus, contrary to McKee’s argument, the district court’s order
constitutes a final “collateral order” conferring interlocutory jurisdiction on this
court. See Will v. Hallock, 546 U.S. 345, 349 (2006) (defining an appealable
“collateral order” as an order that conclusively determines an important issue
that is separate from the merits in such a way as to render the district court’s
resolution of that issue unreviewable on appeal from a final judgment).
B. Whether Qualified Immunity Applies to 42 U.S.C. § 1985(3) Suits
      The district court concluded that qualified immunity is unavailable to
public officials accused of wrongdoing under 42 U.S.C. § 1985(3). In Southard
v. Texas Board of Criminal Justice, 114 F.3d 539 (5th Cir. 1997), this court held
that a defendant “ha[d] qualified immunity as to [the plaintiff’s] claims against
him under section 1983 and section 1985(3).”         Id. at 556.   The court even
clarified in a footnote that the § 1985(3) claim failed under the first prong of
qualified immunity analysis because the plaintiff failed to state a constitutional

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violation. Id. at 556 n.30. Thus, this court has found that defendants may
assert qualified immunity in response to claims arising under § 1985(3).
Southard is binding precedent and controls here. The district court therefore
erred in concluding that qualified immunity is unavailable to public officials
accused of wrongdoing under § 1985(3).
C. Whether Qualified Immunity Was Appropriate Under the Facts As Pled
      In the alternative, the district court held that McKee’s allegations were
sufficient to overcome qualified immunity. As the district court noted, we take
the well-pleaded facts of the complaint as true and construe those facts in the
light most favorable to the plaintiff when assessing a motion to dismiss based
upon qualified immunity. Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008).
Viewed properly, McKee’s complaint does not allege a course of conduct creating
such a violation.
      Under the Supreme Court’s two-pronged qualified immunity framework,
the district court was required to assess whether “a certain course of conduct
would, as a matter of law, be objectively unreasonable in light of clearly
established law.” Kinney, 367 F.3d at 346. Here, the district court accepted
McKee’s conclusory allegation of a hostile work environment as true without
conducting the necessary review of the specific facts constituting the alleged
“course of conduct.” This led it to the erroneous conclusion that McKee had
made out a clearly established violation of a constitutional right.          The
actual¯and limited¯facts alleged by McKee do not support that conclusion.
      However, what must be reviewed is not the plaintiff’s conclusion that she
suffered a hostile work environment but the facts underlying that conclusion.
Those facts, taken as true, are that two of the appellants called McKee a “token”
on one occasion, Robinson allegedly failed to take corrective action when McKee
complained one time, and Cox allegedly caused a video including black-face
depictions to be shown in a school common area. As discussed more fully below,

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while such alleged conduct is reprehensible, without more, it is insufficient to
support a finding of hostile work environment. Thus, no available case law could
have made clear that these acts would have violated clearly established legal
rules at the time of the alleged violation. See Beltran v. City of El Paso, 367 F.3d
299, 303 (5th Cir. 2004) (“[T]he court must determine whether the official’s
conduct was objectively reasonable in light of the clearly established legal rules
at the time of the alleged violation.”).
       Rather, the available case law strongly demonstrates that, while
understandably offensive, the acts alleged are less severe than a variety of
actions that this court has deemed insufficient to create a hostile work
environment. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348 (5th
Cir. 2007) (repeated but infrequent racially-offensive comments deemed
insufficient to state a claim); Rowan Cos. v. Miller, 180 F.3d 265, 1999 WL
301864, at *1-2 (5th Cir. 1999) (unpublished table decision)2 (affirming summary
judgment notwithstanding plaintiff’s presentation of evidence of racial slurs and
overt acts of intimidation); Baker v. FedEx Ground Package Sys., Inc., 278 F.
App’x 322, 324 n.1, 329 (5th Cir. 2008) (unpublished) (similar). In fact, cases
involving more similar incidents of racially-inappropriate behavior have found
such conduct to be insufficient to raise an actionable claim. See, e.g., Mosley v.
Marion County, 111 F. App’x 726, 728 (5th Cir. 2004) (unpublished) (holding that
evidence of three incidents involving racial slurs was insufficient to support a
hostile work environment claim); Pickens v. Shell Tech. Ventures, Inc., 118 F.
App’x 842, 850 (5th Cir. 2004) (unpublished) (holding that a cultural
presentation including a skit with characters in black-face and racially-
insensitive comments made to plaintiff regarding the skit did not create a hostile
work environment).        In light of this authority showing the level to which

      2
         While unpublished cases are not precedent, they are cited here to give examples of
the cases available to appellants.

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allegations must rise to state a claim for a racially-hostile work environment, a
reasonable government official would have lacked clear guidance suggesting the
alleged course of conduct ran afoul of a constitutional or statutory right.
      Without a doubt, such conduct should not occur. However, the district
court erred in concluding that McKee had alleged “a certain course of conduct
[that] would, as a matter of law, be objectively unreasonable in light of clearly
established law” with her limited allegations of three discrete acts of offensive
conduct and the single omission of one supervisor. Accordingly, appellants were
entitled to qualified immunity as a matter of law based on the course of conduct
alleged in McKee’s pleadings.
                             IV. CONCLUSION
      For the reasons set forth above, we REVERSE the district court’s denial
of appellants’ motion to dismiss and REMAND for entry of judgment in favor of
appellants.




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