                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 06-3433
                                  ___________

Gena Duckworth; Tamatha Fischer;          *
Sandra Delaney,                           *
                                          *
              Plaintiffs – Appellees,     *
                                          *
       v.                                 *
                                          *
St. Louis Metropolitan Police             *
Department; Board of Police               *
Commissioners of the City of              * Appeal from the United States
St. Louis,                                * District Court for the Eastern
                                          * District of Missouri.
              Defendants,                 *
                                          *
Bart Saracino; Michael J. Quinn;          *
Francis G. Slay, ex officio, as Members *
of the Board of Police Commissioners; *
Chief Joseph Mokwa; Roy                   *
Joachimstaler, Major; Antoinette Filla, *
Captain, in their individual and official *
capacities; Jo Ann Freeman Morrow,        *
Member of the Board of Police             *
Commissioners; Chris Goodson,             *
Member of the Board of Police             *
Commissioners,                            *
                                          *
              Defendants – Appellants. *
                                     ___________

                            Submitted: April 10, 2007
                               Filed: July 19, 2007
                                ___________
Before MURPHY, BRIGHT, and BENTON, Circuit Judges.
                           ___________

BENTON, Circuit Judge.

      Three female officers sued their superiors for gender discrimination under 42
U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and the
Missouri Human Rights Act, Mo. Rev. Stat. §§ 213.010-213.095. The district court
denied the defense of qualified immunity to the police superiors. This court reverses
and remands.

                                          I.

       After a transfer left no female officers on the night watch in District One,
Captain Antoinette M. Filla asked if any female officers would work then. None
volunteered. Four months later, Captain Filla assigned plaintiff Sandra Delaney to the
night watch. Delaney was the least senior of the experienced female officers in the
district. After working the night watch for two months, Delaney complained that her
husband was called up for military duty and she had difficulty obtaining a babysitter.

       On February 6, 2003, Captain Filla emailed all personnel: “I believe there is
a definite need for female officers on the nightwatch.” On the advice of Major Roy
Joachimstaler – her immediate superior – she assigned the three plaintiffs (based on
seniority) to work the night watch, initially rotating for 28-day periods.

      On February 10, plaintiffs filed a grievance (emphasis in original):

             [We] believe it is unfair to order us based upon our gender, to
             rotate monthly on the night watch. This order is in violation of
             Rules Manual designated in Section 3.114 where it is mandated
             that police officers be permanently assigned to a platoon. This
             order is also in violation of Title VII of the Civil Rights Act 1964
             wherein it is illegal to discriminate against employees in regards

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             to sex, when the policy is applied in terms of condition of
             employment including placement.

On February 14, Captain Filla explained her position in an intra-department report to
the plaintiffs and her superiors (emphasis in original):

             I believe the assignment of females to all watches is imperative to
             the operation of any command, not just patrol operations. It is not
             only important that all watches in every command be as diverse as
             the population we serve, but also as diverse as the entire
             population of our police department. . . .

             The unique operations of law enforcement, also requires unique
             responsibilities by female and male officers, responsibilities which
             no other profession requires. We have to consider the safety of all
             personnel on the street when assigning our officers to crucial
             positions; for example, the searching of suspects at incident
             scenes.

             ....

             I currently have fifteen (15) female officers (6% of authorized
             strength) assigned to District One, with none assigned to the
             nightwatch. We felt it was important to have our females assigned
             strategically to cover several recreation brackets of all watches.

As authority, Captain Filla cited Special Order 90-S-7, which provides: “District
commanders may reassign an officer from his/her assigned work schedule provided
the commander has sufficient justification to do so.” Her “resolution to this Grievance
is to assign three (3) female officers [plaintiffs] to the nightwatch permanently, with
one in each of the three precincts.” Plaintiffs received a 10 percent pay increase while
working the night watch.

      On February 25, plaintiffs filed a second grievance claiming the permanent
placement on the night watch was retaliation for their original grievance. Captain

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Filla rejected the grievance: “Your assignment to the nightwatch was based on the
District’s needs and operations, not on personal issues.”

       On review, the Grievance Committee found that although the initial rotation
violated Department policy, the violation was corrected by the permanent assignment.
The Committee recommended the grievance be rejected. The Committee noted,
however, that civil rights violations are outside the scope of the grievance procedure.
Police Chief Joseph J. Mokwa agreed with the recommendation.

       Chief Mokwa later testified that although “I don’t think that necessarily every
Captain would agree with her . . . this is Tony Filla’s command, and she has the
authority to make those decisions for her command.” Major Joachimstaler
acknowledged that “[t]here’s laws against” race-based and gender-based personnel
decisions, and that “[i]t’s not a Chief’s decision. It’s a decision of district command
[Captain Filla] to assign personnel.” Major Joachimstaler also stated that some
women should work nights because “that’s the optimum for the optimum operation
of the district . . . Not just nights, [but] on all watches.”

       Plaintiffs allege their superiors discriminated against them based on gender, and
retaliated when they complained. The district court denied the defense of qualified
immunity to the police superiors, who appeal.

                                           II.

       Plaintiffs first contend that this court lacks jurisdiction because “Appellants
challenge only the factual findings of the district court.” See Bearden v. Lemon, 475
F.3d 926, 930 (8th Cir. 2007), quoting Johnson v. Jones, 515 U.S. 304, 313 (1995)
(“a question of evidence sufficiency, i.e., which facts a party may, or may not, be able
to prove at trial . . . is not appealable”); Thomas v. Talley, 251 F.3d 743, 746 (8th Cir.
2001) (“we lack jurisdiction over this interlocutory appeal” because “Captain Talley
is asking us to engage in the time-consuming task of reviewing a factual

                                           -4-
controversy”). The parties agree, however, that the sole issue on appeal is whether the
superiors are entitled to qualified immunity.1 Whether qualified immunity applies is
a legal issue. See Bearden, 475 F.3d at 930 (“In considering the immediate appeal
from the denial of qualified immunity, the appealable issue is a purely legal one,
whether the facts alleged . . . support a claim of violation of clearly established law”);
Moore v. Duffy, 255 F.3d 543, 545 (8th Cir. 2001), quoting Behrens v. Pelletier, 516
U.S. 299, 313 (1996) (“summary judgment determinations are appealable when they
resolve a dispute concerning an abstract issue of law relating to qualified immunity
. . . typically, the issue whether the federal right allegedly infringed was clearly
established”). This court has jurisdiction, and plaintiffs’ motion to dismiss the appeal
is denied.

                                           III.

       “This Court reviews the rejection of a qualified-immunity defense de novo.”
Herts v. Smith, 345 F.3d 581, 584 (8th Cir. 2003), citing Burnham v. Ianni, 119 F.3d
668, 673 (8th Cir. 1997) (en banc); see also Pace v. City of Des Moines, 201 F.3d
1050, 1052 (8th Cir. 2000) (same). This court ordinarily looks at the record in the
light most favorable to the party opposing the motion, drawing all inferences most
favorable to that party. Burnham, 119 F.3d at 673.

     In determining whether qualified immunity applies, this court first must
examine: “Taken in the light most favorable to the party asserting the injury, do the


      1
        Plaintiffs’ Title VII (and parallel state law) claims are not at issue on this
appeal. See Genas v. State of N.Y. Corr. Servs., 75 F.3d 825, 829-30 n.3 (2d Cir.
1996) (“the doctrine of qualified immunity is irrelevant to plaintiff's Title VII
claims”); Harvey v. Blake, 913 F.2d 226, 228 (5th Cir. 1990) (“Because the doctrine
of qualified immunity protects a public official from liability for money damages in
her individual capacity only, the doctrine is inapplicable in the Title VII context”); Wu
v. Thomas, 996 F.2d 271, 273 (11th Cir. 1993) (“Qualified immunity is no defense
to a Title VII action”).

                                           -5-
facts alleged show the officer's conduct violated a constitutional right? This must be
the initial inquiry.” See Scott v. Harris, 550 U.S. __ 127 S. Ct. 1769, 1774 (2007)
quoting Saucier v. Katz, 533 U.S. 194, 201 (2001). “If, and only if, the court finds a
violation of a constitutional right, ‘the next, sequential step is to ask whether the right
was clearly established . . . in light of the specific context of the case.’” Id., quoting
Saucier, 533 U.S. at 201; see also Burnham, 119 F.3d at 673.

                                            A.

       Plaintiffs’ “right to be free from gender discrimination is secured by the equal
protection clause of the Fourteenth Amendment.” Tipler v. Douglas County, Neb.,
482 F.3d 1023, 1027 (8th Cir. 2007); Ottman v. City of Independence, 341 F.3d 751,
756 (8th Cir. 2003) (“intentional gender discrimination in public employment by
persons acting under color of state law violates the Equal Protection Clause of the
Fourteenth Amendment”); see United States v. Virginia, 518 U.S. 515, 532 (1996).
Intentional discrimination may be shown by direct or circumstantial evidence. See
Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004).

       Viewing the facts favorably to plaintiffs, there is direct evidence of gender
discrimination. Captain Filla emailed all personnel: “I believe there is a definite need
for female officers on the nightwatch.” On the advice of Major Joachimstaler, she
reassigned only females to work the night watch. Chief Mokwa directly participated
in the reassignments by approving them. There was a specific link between their
belief about “female officers” and the reassignments. Defendants admit: “It is true
that Appellees’ gender was the reason they were involuntarily assigned to the night
watch.” See Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1017 (8th Cir. 1999)
(direct evidence includes “proof of an admission that gender was the reason for an
action”).2


       2
       The police superiors contend that reassignment to the night watch is not an
adverse employment action. The district court found that “there is a question of

                                           -6-
       When the state makes a classification based on gender, “the reviewing court
must determine whether the proffered justification is exceedingly persuasive.” See
Tipler, 482 F.3d at 1028, quoting Virginia, 518 U.S. at 533. “For a gender-based
classification to withstand equal protection scrutiny, it must be established at least that
the [challenged] classification serves important governmental objectives and that the
discriminatory means employed are substantially related to the achievement of those
objectives.” Nguyen v. INS, 533 U.S. 53, 60 (2001) (internal quotations omitted).

       In this case, Captain Filla’s intra-department report identifies two governmental
objectives. First, she believed it was “important that all watches in every command
be as diverse as the population we serve.” Second, Filla aimed “to consider the safety
of all personnel on the street when assigning our officers to crucial positions; for
example, the searching of suspects at incident scenes.” The record here does not
demonstrate the importance of these objectives. Other than Captain Filla’s report,
there is little evidence of the importance of assigning females to night watches. There
was no city-wide policy or procedure to assign females to night watches. When Chief
Mokwa was asked if he promulgated any order requiring a certain number of females
be assigned to any given shift, he stated: “No. Because I haven’t seen any analysis
that would require me to do that.” Chief Mokwa stated that during his four years as
chief, no other supervisor had recommended “that females should be assigned to
various watches.” Chief Mokwa acknowledged that he did not think “that necessarily
every Captain would agree with [Filla],” and stated “I don’t know” whether he would
agree with her decision. Major Joachimstaler said that he “would never submit a
memo or written document saying we should gender base or race base any personnel


material fact as to whether a reasonable employee would view Filla’s decision to place
Plaintiffs on the night watch permanently to be a materially adverse action.” In this
qualified-immunity appeal, this court will not review a factual controversy. See
Thomas, 251 F.3d at 746. See generally Phillips v. Collings, 256 F.3d 843, 848 (8th
Cir. 2001) (“we need not determine for purposes of this appeal whether discrimination
claims premised on 42 U.S.C. § 1983 require a showing of an adverse employment
action”).

                                           -7-
decisions, because you shouldn’t do it that way.” On the facts of this case, the police
superiors did not show the governmental objectives were important.3 Therefore, the
proffered justifications are not exceedingly persuasive.

                                            B.

       The next step in the qualified immunity analysis “is to ask whether the right was
clearly established . . . in light of the specific context of the case.” See Saucier v.
Katz, 533 U.S. 194, 201 (2001). “The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Id. at 202.
Reasonable mistakes “can be made as to the legal constraints on particular police
conduct. . . . If the officer's mistake as to what the law requires is reasonable . . . the
officer is entitled to the immunity defense.” McClendon v. Story County Sheriff’s
Office, 403 F.3d 510, 515 (8th Cir. 2005), quoting Saucier, 533 U.S. at 202.

       Plaintiffs repeatedly emphasize that Chief Mokwa promulgated as department
policy – and Captain Filla and Major Joachimstaler knew about – Special Order 2001-
S-9. It says: “Management actions such as hiring and firing, promotion or failure to
promote, demotion, reassignment or transfer . . . will not discriminatorily be based on
race, color, religion, sex, national origin, age or disability.”

       Special Order 2001-S-9, however, is general and abstract. The qualifier
“discriminatorily” anticipates that some decisions based on sex will not be
discriminatory. Other Special Orders give instances of decisions based on sex that
might not be discriminatory. For example, Special Order 92-S-2 says, “It is preferable
for suspects and prisoners to be searched by an officer of the same sex.” Special


      3
          The police superiors’ repeated argument that “there is no evidence that Captain
Filla . . . harbors animosity toward other women” is irrelevant to the importance of the
governmental objectives in this case.

                                           -8-
Order 94-S-7 states, “A female prisoner shall be searched only by a female officer.”
That Order further provides, “Female adult prisoners shall only be transported with
other female adult prisoners. Juvenile prisoners shall only be transported with other
juvenile prisoners of the same sex.” Special Order 86-S-4 says, “All persons who are
to be confined . . . shall be subject to a thorough custodial search conducted by a
person of the same sex as the person being searched whenever reasonably possible.”
For body cavity searches: “The search must be conducted in the presence of an officer
of the same sex as the person to be searched.” Strip searches are to be conducted by
“an officer and in the presence of officers of the same sex as the person to be
searched.” In sum, these Special Orders do not address the specific context of shift-
reassignments based on gender.

       In the specific context of this case, the superiors were confronted with the
situation where no female officers were working the night watch in District One.
Captain Filla thought that Special Order 90-S-7 granted her authority to reassign
Plaintiffs, as long as she had a “sufficient justification.” Major Joachimstaler believed
that having some females on the night watch was the “optimum for the optimum
operation of the district.” Chief Mokwa testified that Captain Filla had “the authority
to make those decisions for her command.” Captain Filla testified that female
domestic violence victims should be interviewed by female officers, and she was
concerned about the safety of all personnel and the searching of female suspects at
incident scenes.

       Reasonable police administrators could believe that assigning female officers
to the night watch was lawful. See Pace v. City of Des Moines, 201 F.3d 1050, 1052
(8th Cir. 2000), citing Anderson v. Creighton, 483 U.S. 635, 641 (1987) (“Qualified
immunity shields Officer Danner from suit if a reasonable officer could have believed
his actions to be lawful, in light of clearly established law and the information that he
possessed”). This reasonable belief about assigning female officers includes a
reasonable belief by Chief Mokwa that Captain Filla (and other officers) did not need
further training or supervision.

                                          -9-
       In a similar context, this court has approved reassignments based on gender.
Female correctional officers may be transferred to a particular shift because of gender
(based on an exceedingly persuasive justification). See Tipler v. Douglas County,
Neb., 482 F.3d 1023, 1028 (8th Cir. 2007) (equal protection not violated when jail
showed important governmental objectives “to implement state law, the jail standards,
the union agreement, and proper prison administration;” and the jail “employed means
that were substantially related” to achieving the objectives), citing Tharp v. Iowa
Dep’t of Corrs., 68 F.3d 223, 226 (8th Cir. 1995), cert. denied, 517 U.S. 1135 (1996)
(gender-based policy was reasonable when it was a minimal restriction on
employment and “addresses female inmate privacy concerns, improves the Facility's
rehabilitative services to female inmates, and advances the interests of female
employees”). Cf. Timm v. Gunter, 917 F.2d 1093, 1102 n.3 (8th Cir. 1990) (a
“staffing restriction does not violate Title VII” because “a minimal restriction such as
the Unit 5 gender-based staffing restriction does not deprive female employees of any
employment opportunities”). The present case is unlike Goodwin v. Circuit Court of
St. Louis County, 729 F.2d 541 (8th Cir. 1984), where the female hearing officer was
transferred after the unreasonable defendant said, “This court will never run well so
long as there are women in charge,” and “This Court won’t run smoothly until we get
rid of these g_ _d_ _ _ women.” Id. at 544.

      Here, although the plaintiffs were impermissibly reassigned without an
exceedingly persuasive justification, the decision – although mistaken – was
reasonable. “The issue is not whether the defendant acted wrongly, but whether
reasonable persons would know they acted in a manner which deprived another of a
known constitutional right.” Herts v. Smith, 345 F.3d 581, 585 (8th Cir. 2003),
quoting Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002). Based on the defendants’
reasonable judgments, qualified immunity should have been granted.




                                         -10-
                                       IV.

      The police superiors were entitled to qualified immunity on counts IV and V,
the 42 U.S.C. § 1983 claims. Appellees’ motion for sanctions is denied. The
judgment of the district court is reversed in part, and the case remanded.
                       ______________________________




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