                                                                                FILED
                                                                    United States Court of Appeals
                    UNITED STATES COURT OF APPEALS                          Tenth Circuit

                          FOR THE TENTH CIRCUIT                              July 8, 2015
                      _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
BRENDA TAITE,

      Plaintiff - Appellee,

v.                                                        No. 14-2220
                                              (D.C. No. 1:13-CV-00792-JAP-RHS)
THERESA RAMOS, individually and in                         (D. N.M.)
her official capacity,

      Defendant - Appellant,

and

UNIVERSITY OF NEW MEXICO
BOARD OF REGENTS,

      Defendant.
                      _________________________________

                          ORDER AND JUDGMENT*
                      _________________________________

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
                 _________________________________

      Theresa Ramos appeals the district court’s denial of summary judgment as to

Brenda Taite’s claims against her under 42 U.S.C. §§ 1981 and 1983. We lack

jurisdiction in this interlocutory appeal to review the order concerning the § 1981

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
claim and therefore dismiss the appeal as to that claim. We reverse and remand the

order as to the § 1983 claim for further proceedings.

                                   BACKGROUND

      In April 2012, Ms. Taite was hired as an Equal Opportunity Specialist with the

University of New Mexico’s (University) Office of Equal Opportunity. Pursuant to

University policy, she was required to serve a six month probationary period.

According to that policy, she could be terminated for any reason, with or without

cause, during the probationary period. Two months into the probationary period, she

was terminated by Ms. Ramos.

      Believing she was the victim of discrimination, Ms. Taite sued the University

and Ms. Ramos. Relevant here, she alleged claims under §§ 1981 and 1983 and Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-17. Regarding the § 1981

and § 1983 claims, Ms. Taite’s pro se amended complaint states: “[Ms.] Ramos (sic)

acts of race discrimination and retaliation, as well as [her] creation of a hostile work

environment, have violated provisions of the Fourteenth Amendment of the United

States Constitution and the plaintiff is entitled to pursue remedies under 42 U.S.C.

Section 1981 & 1983.” Aplt. App. at 58 (emphasis added).

      The district court found that the existence of disputed material facts precluded

summary judgment on the § 1981 claim. As to the § 1983 claim and Ms. Ramos’s

defense of qualified immunity, the court concluded that Ms. Taite’s “right to be free

from racial discrimination was clearly established at the time of her employment with



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[the University],” and the existence of disputed issues of material fact likewise

precluded summary judgment. Id. at 185.

                                     ANALYSIS

The § 1981 Claim

      The district court explained that Ms. Ramos “does not seek qualified immunity

on [Ms. Taite’s] § 1981 claims, and instead, argues that she is entitled to summary

judgment on the § 1981 claims.” Id. at 191. Notwithstanding, Ms. Ramos maintains

that she did seek qualified immunity and therefore this court has jurisdiction to

review the order. We disagree. Specifically, Ms. Ramos argued that Ms. Taite’s

“Section 1983 claims against [her] in her individual capacity are subject to dismissal

on the basis of qualified immunity and [her] Section 1981 claims are subject to

dismissal pursuant to Fed. R. Civ. P. 12(b)(6) and 56(c).” Id. at 63 (emphasis

added). We have further mined the pleadings to unearth any argument of qualified

immunity in relation to the § 1981 claim, and find none.1

       “Unlike the denial of qualified immunity . . . the denial of [a] motion for

summary judgment is not a final decision under 28 U.S.C. § 1291 and is not normally

reviewable by this Court.” Lee v. Nicholl, 197 F.3d 1291, 1297 (10th Cir. 1999).

Because Ms. Ramos did not move for qualified immunity with respect to the § 1981

claim, we lack jurisdiction to review the order denying summary judgment.


      1
       Ms. Ramos’s motion was captioned “Defendant Theresa Ramos’ Motion for
Summary Judgment Based on Qualified Immunity.” Aplt. App. at 62. However, the
substance of a pleading—not its caption—controls. See Cosgrove v. Bartolotta,
150 F.3d 729, 732 (7th Cir. 1998) (explaining that “captions do not control”).
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The § 1983 Claim

       Ms. Ramos did argue for qualified immunity as to the § 1983 claim. And

because she appeals a legal conclusion—whether the law was clearly established—

we have jurisdiction to review the order. “[A] district court’s decision denying a

government official qualified immunity is an immediately appealable final collateral

order . . . [provided the appeal] is limited to purely legal issues raised by the denial of

qualified immunity.” Morris v. Noe, 672 F.3d 1185, 1188-89 (10th Cir. 2012)

(internal quotation marks and brackets omitted).

       “[B]ecause qualified immunity is designed to protect public officials from

spending inordinate time and money defending erroneous suits at trial, we review

summary judgment decisions involving a qualified immunity defense somewhat

differently than other summary judgment rulings.” Rojas v. Anderson, 727 F.3d

1000, 1003 (10th Cir.) (internal quotation marks omitted), cert. denied, 134 S. Ct.

800 (2013). Where a defendant asserts qualified immunity, “the burden shifts to the

plaintiff to satisfy a strict two-part test: first, the plaintiff must show that the

defendant’s actions violated a constitutional or statutory right; second, the plaintiff

must show that this right was clearly established at the time of the conduct at issue.”

Id.

       Ms. Taite attempted to meet the first part of the test by arguing that Ms. Ramos

“violated [her] constitutional right to equal protection of the laws.” Aplt. App.

at 121. Despite this argument and the amended complaint, which pled a Fourteenth



                                              4
Amendment violation as the basis for the § 1983 claim, the district court rejected the

notion the claim was based on a constitutional violation:

             It also appears that Defendant Ramos seeks dismissal of two
      claims that Plaintiff did not raise in her Amended Complaint: (1) a
      violation of Plaintiff’s Fourteenth Amendment right to procedural due
      process protections in relation to a property interest of continued
      employment and (2) a violation of Plaintiff’s right to equal protection
      under the Fourteenth Amendment. . . . Nothing in the Amended
      Complaint alleges that Plaintiff had a legitimate interest in continued
      employment at [the University of New Mexico] or that Plaintiff was
      terminated without specific due process protections. . . . The same is
      true with respect to an equal protection claim under the Fourteenth
      Amendment. Nothing in Count 3 of Plaintiff’s Amended Complaint
      specifically alleges an equal protection cause of action. Yet, in briefing,
      Defendant Ramos primarily discusses a possible Equal Protection
      Clause claim instead of analyzing the pertinent elements of a race
      discrimination claim under §§ 1983 and 1981, a claim that Plaintiff did
      clearly allege.
Id. at 176-77.
      The district court found instead that the § 1983 claim was based on the “right

to be free from racial discrimination,” and citing Title VII, it concluded the law “was

clearly established at the time of [Ms. Taite’s] employment with [the University].”

Id. at 185. In so ruling, the court effectively eliminated Ms. Taite’s § 1983 claim.

Although the same conduct can support a violation of § 1983 and Title VII, “a

plaintiff may base a section 1983 claim on actions proscribed by Title VII where

those actions also violate the United States Constitution.” Polson v. Davis, 895 F.2d

705, 710 (10th Cir. 1990) (internal quotation marks omitted). See also Notari v.

Denver Water Dep’t, 971 F.2d 585, 587 (10th Cir. 1992) (“[T]he basis for a § 1983

claim is ‘independent’ from Title VII when it rests on substantive rights provisions

outside Title VII—that is, when it rests on a constitutional right or a federal statutory
                                            5
right other than those created by Title VII”). Here, the court’s determination that

Ms. Taite’s § 1983 claim was not based on either a constitutional right or a statutory

right other than Title VII, means there is no claim.

       Under different circumstances we might remand the case to the district court to

enter judgment for Ms. Ramos on the § 1983 claim. But neither the court nor the

parties have been afforded an opportunity to examine the issue and explain their

respective positions concerning the court’s characterization of the § 1983 claim under

the principles announced in Notari and Polson. We therefore reverse and remand the

order as to the § 1983 claim for further proceedings consistent with this order and

judgment. We dismiss the appeal denying summary judgment on the § 1981 claim

for lack of jurisdiction.


                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




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