               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                   File Name: 18a0310n.06

                                      CASE NO. 17-5918

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                    )                         FILED
  MATHIS & SONS, INC., et al.,                      )                   Jun 22, 2018
                                                    )               DEBORAH S. HUNT, Clerk
        Plaintiffs-Appellees,                       )
                                                    )
                 v.                                 )
                                                    )     ON APPEAL FROM THE
  COMMONWEALTH OF KENTUCKY                          )     UNITED STATES DISTRICT
  TRANSPORTATION CABINET, et al.,                   )     COURT FOR THE WESTERN
                                                    )     DISTRICT OF KENTUCKY
        Defendants-Appellants.                      )
                                                    )

Before: BATCHELDER, McKEAGUE, and GRIFFIN, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal from the denial

of a motion for summary judgment based on qualified immunity, the defendants contend (among

other things) that the plaintiffs’ right was not clearly established. We AFFIRM.

                                               I.

       Mathis & Sons, Inc. is a construction company. Its president, plaintiff Maureen Mathis, is

an African-American woman; her two adult sons are African-American men. In 2003, the

Kentucky Transportation Cabinet (KYTC) certified Mathis & Sons as a disadvantaged business

enterprise (DBE) for purposes of minority bidding on federally funded construction projects.

       In April 2013, Mathis & Sons submitted a request to the KYTC’s Office of Civil Rights

and Small Business Development, seeking to add certain North American Industry Classification

System (NAICS) code designations to its DBE certification, so that it could also offer consulting

services. As Mathis & Sons informed KYTC, it needed the codes to finalize a large contract.
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         KYTC assigned Reed Hampton as the “lead investigator” for the request and assigned

defendant Shella Eagle to assist him. As the lead investigator, Hampton’s role was to submit a

recommendation to the KYTC Certification Committee, which ordinarily accepts the lead

investigator’s recommendation. Hampton had been a KYTC investigator for 13 years.

         Based on the investigation, Hampton found that Mathis & Sons was qualified for the

NAICS code certifications, and he thought that Eagle agreed.           Hampton drafted a report

recommending the approval of the NAICS codes as well as renewal of the DBE certification, and

told KYTC staff of that recommendation. Hampton then left on medical leave for several weeks.

         While Hampton was out on leave, defendant Tyra Redus—the Executive Director of

KYTC’s Office of Civil Rights and Small Business Development—told Eagle to draft a different

recommendation: a recommendation advising the Committee to deny the NAICS code

certifications and also to de-certify Mathis & Sons from the DBE program. According to Redus

and defendant Melvin Bynes, a KYTC branch manager, the basis for this new recommendation

was their belief that Maureen Mathis did not actually control Mathis & Sons because her sons had

answered most of the investigators’ questions during the on-site interview. But even if that belief

were correct—though it was later proven not to be—it is noteworthy that the sons, like Maureen,

are African American, so the business was properly certified as a DBE either way.

         Eagle submitted the recommendation for de-certification to the Committee, as instructed,

but listed Hampton as the investigator, making it appear as though it was his recommendation.

Hampton did not know that they had changed his recommendation. If she is to be believed, Eagle

claims that she was unaware of Hampton’s recommendation for approval.

         In July 2013, the Committee met to consider Mathis & Sons’ request. Maureen Mathis

testified about her control of the company. An outraged Reed Hampton appeared at the meeting,

despite his still being out on medical leave (recovering from surgery), and argued for both the

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approval of the NAICS codes and recertification of Mathis & Sons in the DBE program. The

Committee requested additional information and deferred a decision until its August meeting, at

which it approved both the requested NAICS codes and the DBE recertification. But by that time,

because of the delay, Mathis & Sons had been replaced on the large contract.

         Hampton filed internal complaints with KYTC, alleging that the DBE program treated

Caucasian applicants more favorably than African-American applicants, and providing several

specific examples of the alleged preferential treatment. The Federal Highway Administration’s

Kentucky Division Office (FHA) investigated Hampton’s complaint and though it found “no

evidence that the KYTC implemented its DBE Program such that it discriminated against older,

African American-owned applicants through disparate treatment” or “through disparate impact,”

it did find that “there was a disparity between the rates that African American-owned firms were

terminated or withdrawn compared to white-owned firms,” as happened here. Despite this finding,

the report concluded that “the Investigator could not draw a conclusion about the disparity” and

merely urged “KYTC to investigate the potential cause for this disparity.”

         Mathis & Sons sued KYTC, Eagle, Redus, and Bynes, alleging racial discrimination in

violation of Title VI and 42 U.S.C. § 1983, and raising state-law claims of negligence and bad

faith. Hampton provided an affidavit to reassert and authenticate the facts and accusations that he

had made in his internal complaint. The defendants moved for summary judgment on several

bases, including claims of qualified immunity and sovereign immunity.

         The district court granted sovereign immunity to KYTC and the individual defendants in

their official capacities. Mathis & Sons, Inc. v. Ky. Transp. Cabinet, 2017 WL 3045125, at *9

(W.D. Ky. July 18, 2017). But the court found that the “right to be free from racial discrimination

. . . was clearly established,” id. at *10, and that Mathis had produced sufficient evidence that a

reasonable juror could find that Eagle, Redus, and Bynes “were motivated by discriminatory intent

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or purpose” when they recommended denial and decertification, id. This evidence included: (1)

Hampton’s affidavit and complaint asserting specific incidents of differing treatment based on

race; (2) the independent FHA investigation report findings of select disparity; (3) the “doubt

[about] KYTC’s stated reason for seeking termination of the [] DBE certification” (i.e., that the

company somehow wasn’t a minority business because it was run by the African-American sons

rather than their African-American mother); and (4) the otherwise inexplicable act of submitting

the recommendation to the Committee as though it had been Hampton’s recommendation. Id. at

*10-11. The court framed these as material questions of fact and denied the individual defendants’

claims of qualified immunity.

                                                         II.

         On appeal, Eagle, Redus, and Bynes raise four claims, including three that are untenable

and do not warrant reanimation here, namely that: (1) Mathis did not prove injury, claiming that

the plaintiffs “failed to demonstrate that they have suffered any constitutional deprivation so as to

implicate the protections of Section 1983,” Apt. Br. at 9, 11; (2) Mathis “failed to articulate any

viable Kentucky State Law claim” or “actionable claim of negligence under Kentucky law,” Apt.

Br. at 9, 13; and (3) defendants’ “conduct was at all times discretionary in nature,” so they were

“entitled to governmental immunity under Kentucky State Law,” Apt. Br. at 9, 13. Regarding the

first claim, we conclude after careful review of the record, the controlling law, and these

arguments, that the district court set out the applicable law and correctly applied that law to the

facts. Further discussion by this court would serve no useful purpose.

         The other two are state-law claims over which we lack jurisdiction in this interlocutory

appeal based on federal qualified immunity. See McDonald v. Flake, 814 F.3d 804, 816 (6th Cir.

2016) (explaining that we have pendent appellate jurisdiction only if the federal qualified

immunity issues cannot be resolved without addressing the nonappealable collateral issues).

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         The defendants’ fourth claim is that “there [wa]s no ‘clearly established’ law so as to put a

reasonable public official on notice that the conduct in question here would be constitutionally

violative.” Apt. Br. at 9, 12-13. Basically, the defendants’ argument is that they were duty bound

to pursue their legitimate concerns that Mathis & Sons was not actually eligible for DBE status

and they had no way of knowing that doing so would violate the Constitution.

         On the one hand, this is an improper fact-based challenge to the district court’s finding that

Mathis & Sons produced sufficient evidence that a jury could find that the “concerns” were a

fabricated and implausible rationalization for racial discrimination. On interlocutory appeal from

the denial of qualified immunity, as here, we lack jurisdiction to “decide an appeal challenging the

district court’s determination of ‘evidence sufficiency.’” DiLuzio v. Vill. of Yorkville, 796 F.3d

604, 609 (6th Cir. 2015) (quoting Johnson v. Jones, 515 U.S. 304, 313 (1995)).

         On the other hand, this is a purely legal challenge—over which we have jurisdiction, see

id. at 608-11—in which the defendants are claiming that the law did not clearly proscribe their

specific conduct. We may review this based on Mathis & Son’s proffered evidence and the

inferences the district court drew from that evidence, see id. at 609 (explaining that “a defendant

may not challenge the inferences the district court draws from those facts, as that too is a prohibited

fact-based appeal”), namely, that the alleged “concerns” were actually a fabrication used as cover

for the violation of Mathis & Sons’ rights, concocted by these defendants, who “were motivated

by discriminatory intent or purpose,” Mathis & Sons, 2017 WL 3045125 at *10.

         The defendants argue that, even so, Mathis & Sons has failed to identify any precedent

directly on point to demonstrate that this conduct was contrary to “clearly established law,” as is

required under the second prong of the qualified immunity analysis. See White v. Pauly, 580 U.S.

--, 137 S.Ct. 548, 552 (2017). “But general statements of the law are not inherently incapable of

giving fair and clear warning, and in [some] instances a general constitutional rule already

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identified in the decisional law may apply with obvious clarity to the specific conduct in question,

even though the very action in question has not previously been held unlawful.” United States v.

Lanier, 520 U.S. 259, 271 (1997) (quotation marks and editorial marks omitted) (quoted with

approval in White, 137 S.Ct. at 552). As we have elsewhere opined:

         Some personal liberties are so fundamental . . . as to need no specific explication in
         our Constitution in order to ensure their protection against government invasion.
         [For example,] [s]urreptitiously videotaping the plaintiffs in various states of
         undress is plainly among them. . . . [A] person of ordinary common sense . . . would
         know without need for specific instruction from a federal court, that . . .
         [surreptitiously videotaping naked teenagers would violate their rights].

Brannum v. Overton Cty. Sch. Bd., 516 F.3d 489, 499 (6th Cir. 2008).

         The question here, then, is whether the established law forbidding racial discrimination

would “apply with obvious clarity” to the defendants’ acts, if “motivated by discriminatory intent

or purpose” and intended to harm Mathis & Sons’ business. That is, would a KYTC employee of

ordinary common sense know, without need for specific instruction from a federal court, that

fabricating alleged concerns and falsifying Reed Hampton’s recommendation, due to racial

animus, would violate Mathis & Son’s rights? We are confident that he or she would know.

                                                        III.

         For all of the foregoing reasons, we AFFIRM the judgment of the district court.




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