
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1082                                  SHEREE A. CARTER,                                 Plaintiff, Appellee,                                          v.                            STATE OF RHODE ISLAND, ET AL.,                               Defendants, Appellants.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                                                                      ____________________                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                                                                      ____________________             James R.  Lee, Assistant Attorney  General, with whom  Jeffrey B.             _____________                                          __________        Pine, Attorney General, was on brief for appellants.        ____             George  Carvalho,  with whom  Patrick  J. Quinlan  and  George E.             ________________              ___________________       _________        Babcock were on brief for appellee.        _______                                                                                      ____________________                                   October 18, 1995                                                                                      ____________________                    CYR, Circuit Judge.  Appellee Sheree A. Carter, a state                    CYR, Circuit Judge.                         _____________          prison guard, filed suit against the State of Rhode Island, eight          of her supervisors or superior officers, and her  union, alleging          race and  gender  discrimination.   Four  individual  defendants,          among the  eight individual defendants who  initiated this inter-          locutory appeal,  challenge a  district  court order  disallowing          their  "qualified immunity"  defenses  at summary  judgment.   We          dismiss their appeal, for lack of appellate jurisdiction.                                            I                                          I                                     BACKGROUND1                                     BACKGROUND                                     __________                    The Rhode Island Department of Corrections hired Carter          as  a prison  guard in October  1990.  Her  superior officers and          supervisors embarked on a prolonged campaign of workplace harass-          ment in  April 1991.    The work  environment was  marked by  (i)          several disciplinary measures against Carter based on infractions          for  which defendants  had never  disciplined white  male guards,          (ii) especially  undesirable or  dangerous work assignments  made          without regard to her seniority and class ranking, and failure to          accord "serious consideration" to  her application for promotion,          (iii)  repeated  racial  slurs  and  sexual  threats  anonymously          directed against Carter  in telephone  calls at work  and at  her          home, and  in graffiti posted  at or near her  work station, (iv)          failure to address her  repeated complaints about ongoing harass-                                        ____________________               1The material facts are related in the light  most favorable          to  Carter, the party resisting summary judgment.  See Hegarty v.                                                             ___ _______          Somerset County, 53 F.3d 1367, 1368 n.1 (1st Cir. 1995).           _______________                                          2          ment,  amounting  to  implicit condonation,  and  (v)  defamatory          comments to  the press  relating to Carter's  discrimination com-          plaints.                     Carter commenced  suit  in federal  district  court  in          August 1993,  alleging, inter  alia, that defendants  violated 42                                  _____  ____          U.S.C.   1983 by  infringing her constitutional right to  be free          from race and  gender discrimination  under the  Fifth and  Four-          teenth  Amendments  to  the  United States  Constitution.2    She                                        ____________________               2Only the  ruling  denying summary  judgment on  the    1983          claims is before us on appeal.  An amended complaint additionally          alleged civil  rights claims under  42 U.S.C.    1981 (race-based          discrimination only)  and   1985, pendent  state-law claims under                         ____          the Rhode Island Whistleblower Protection Act, see R.I. Gen. Laws                                                         ___             28-14-18 (1994), and common law tort claims for defamation and          intentional infliction of emotional  distress.  Later, Carter was          allowed to amend  the complaint  again by including  a Title  VII          claim, see 42 U.S.C.   2000e-2(a)(1), to conform to the proffered                 ___          evidence.  Defendants moved for  summary judgment on all  claims,          based on their qualified immunity defenses to the   1981,    1983          and   1985 claims.               The  district court  denied  summary judgment  to all  eight          defendants on the Title VII claims, finding trialworthy issues of          material fact.   See Carter  v. State  of Rhode  Island, No.  93-                           ___ ______     _______________________          0447B,  slip op. at 6-7, 18-20  (D.R.I. Nov. 9, 1994) (Report and          Recommendation).   The  court also  dismissed the     1985 claims          against  all eight  defendants  because Carter  failed to  adduce          sufficient  evidence to generate  a trialworthy  issue as  to the          existence  of  a "conspiracy."   Id.  at  15-17, n.47.   Finally,                                           ___          except for  the defamation claim against  "supervisory" defendant          Vose,  the court denied all  motions for summary  judgment on the          state-law claims.  Id. at 25-27.                               ___               Though not at issue in this interlocutory appeal, we note an          apparent inconsistency  between the district court  order and the          memorandum explaining its rationale; viz., there is no foundation          in  the memorandum and order for the district court's decision to          dismiss the   1981 claims  against the four "supervisory"  defen-          dants.  The court dismissed the   1981 claims against the "union"                                                                ___  _____          defendants because Carter had adduced  insufficient evidence that          __________          the union  intentionally  or purposefully  discriminated  against              _____          Carter by selectively invoking a union  policy not to investigate          a union  member's complaints  while the complainant  is receiving          workers' compensation.  Id.  at 11-13.  On the  other hand, there                                  ___          is no discussion  of the    1981 claims  against appellants,  who                                                   _______ __________                                          3          sought injunctive relief, compensatory  and punitive damages, and          attorney fees.  Defendants moved for summary judgment, contending          that Carter had failed to state  a claim upon which relief may be          granted, see Fed. R. Civ. P. 12(b)(6), (c), and asserting "quali-                   ___          fied immunity" from suit.                    The  district court  categorized the  eleven individual          defendants in three groups:                      "Union" Defendants:  Rhode Island Brotherhood                     _________________                    of  Correctional  Officers  (Union);  William                    Bove (Union president); Kenneth Rivard (Union                    grievance chairman);                    "Supervisory" Defendants: George A. Vose, Jr.                     _______________________                    (Director of Rhode Island Department  of Cor-                    rections);  Captain  Walter Whitman  (Warden;                    Carter's  supervisor);  Captain  Thomas  Par-                    tridge (Deputy  Warden; Carter's supervisor);                    Barry Levin (the Department's  Chief Supervi-                    sor of Employee Relations); and                     "Superior  Officer"  Defendants:   Lieutenant                     ______________________________                    Ronald  Le  Clerc;  Captain  Kenneth  Ahearn;                    Captain  Peter  Germani  and  Captain  Ronald                                        ____________________          moved  for summary judgment  on the    1981 and    1983 claims on          qualified immunity grounds only, and whose   1981 liability is in          no sense derivative of, nor dependent upon, the union defendants.               Nevertheless,  dismissal of  the    1981 claims  against the          "superior  officer"  defendants  does  appear to  flow  from  the          dismissal  of the   1983 claims against those defendants based on          insufficient  evidence of  discriminatory intent.   On  the other          hand,  assuming  the  district  court  correctly  denied  summary          judgment to  the  four "supervisory"  defendants  on the     1983          claims,  we discern  no basis  for dismissing  the    1981 claims          against  these  "supervi-sory"  defendants.   Although  qualified          immunity may be available under    1981, defendants normally  are          denied  the pretrial  benefits of an  immunity defense  where, as                                                                         __          here,  the court  finds  trialworthy issues  pertaining to  their          ____          subjective  state  of mind,  i.e.,  discriminatory  intent.   See                                                                        ___          Alexis v. McDonald's Restaurants of Mass., Inc.,    F.3d     ,             ______    _____________________________________  __      ____  __          (1st Cir. 1995) [No. 94-1554, slip  op. at 13, n.7 (1st Cir. Oct.          10,  1995)].  Accordingly, the parties should explore this appar-          ent inconsistency on remand.                                          4                    Brodeur (Carter's superiors).3                    The  first  district  court  ruling  pertinent  to  the          present  appeal dismissed  the  section 1983  claims against  the          "superior  officer" defendants because  Carter's alleged right to          be  free from undesirable  or dangerous  work assignments  is not          protected under the Fourteenth Amendment, and the actions charged          against defendants  could not  support a reasonable  inference of          discriminatory  intent.  Carter v. State of Rhode Island, No. 93-                                   ______    _____________________          0447B,  slip op.  at  23-24 (D.R.I.  Nov.  9, 1994)  (Report  and          Recommendation).  And,  as to defendant  Le Clerc, who  allegedly          issued a  public reprimand  of Carter,  the district  court found          that the  allegation  that  white  male prison  guards  were  not          subjected  to  similar reprimands  did  not  provide an  adequate          foundation for an inference  that Le Clerc was motivated  by race          or gender  discrimination.  Accordingly, the  court dismissed the          section 1983  claims against  the four "superior  officer" defen-          dants.4                    Second, the court ruled  that Carter had stated action-                                        ____________________               3After  the  motions  for  summary  judgment  were  referred          pursuant to 28 U.S.C.   636(b)(1)(B),  the district court adopted          the report and recommendation issued by a magistrate  judge three          days prior to  oral argument  in this appeal.   Accordingly,  the          report and  recommendation is  cited throughout, as  the district          court ruling.               4Although  eight "superior officer" and "supervisory" defen-          dants  are  named in  the notice  of  appeal, the  order granting                                                                   ________          partial summary judgment for the "superior officer" defendants is          not immediately appealable, as it has not been certified pursuant          to Fed.  R. Civ. P.  54(b).   See Hegarty, 53  F.3d at  1372; see                                        ___ _______                     ___          generally  Kersey v. Dennison Mfg. Co., 3 F.3d 482, 486 (1st Cir.          _________  ______    _________________          1993).                                           5          able section  1983 claims  against the four  "supervisory" defen-          dants, by alleging that she caused copies of her complaints to be          sent to each     thereby  establishing that they  knew about  her                                                            ____          allegations of  ongoing race and gender  harassment and disparate          treatment    thus demonstrating a trialworthy dispute as to their          intent  in  failing  to redress  her  allegations.    Id. at  23.          ______                                                ___          Finally,  the district  court ruled  that the  four "supervisory"          defendants  were not  entitled  to qualified  immunity from  suit          because  the right to be free from race and gender discrimination          by  government  officials  had  been "clearly  established"  long          before 1990.   Id. at 24-25.   Thus, only the four  "supervisory"                         ___          defendants [hereinafter:   "appellants"] presently  challenge the          district court summary judgment ruling rejecting their "qualified          immunity" defenses.  See supra notes 2 & 4.                                ___ _____                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    A  government  official  is not  entitled  to qualified          immunity  from suit "if the  right asserted by  the plaintiff was          `clearly established' at the time of its alleged  violation . . .          [and] a  reasonable official  situated in the  same circumstances           ___                                   __ ___  ____ _____________          should have understood that  the challenged conduct violated that                                       ___ __________ _______          established right."  Burns v. Loranger, 907 F.2d 233, 235-36 (1st                               _____    ________          Cir. 1990)  (citing Mitchell  v.  Forsyth, 472  U.S. 511  (1988))                              ________      _______          (emphasis  added).   The  district court  determined that  "[t]he          constitutional right to be  free from [] invidious discrimination          is  so well established and  so essential to  the preservation of                                          6          our  constitutional  order  that  all public  officials  must  be          charged with knowledge of it."  Carter, No. 93-0447B, slip op. at                                          ______          25 (D.R.I. Nov. 9, 1994).                      Appellants contend  in  their opening  brief  that  the          district  court should have  proceeded to consider  whether, as a          matter of law, the  particular conduct of each individual  defen-          dant was objectively reasonable.  They rely heavily on an analogy          to Harris  v. Forklift Sys., Inc., 114 S. Ct. 367 (1993), a Title             ______     ___________________          VII  case.    Appellants  argue that  Harris  prescribes  minimum                                                ______          evidentiary  standards for establishing the "objectively abusive"          conduct needed to support a  reasonable inference that a particu-          lar defendant  harbored an  invidious discriminatory intent.   As          they  see it,  the facially  innocuous or  objectively reasonable          conduct  in which appellants,  as well as  the "superior officer"          defendants, are alleged to have engaged (e.g., defendants "glanc-          [ed]" at  Carter during roll  call; refused  to let her  drive an          automobile without a license) falls far short of the "objectively          abusive  conduct" required  under Harris  (viz., repeated  use of                                            ______          explicit  gender-based insults,  sexual  innuendo,  threats,  and          coercion against  a subordinate).   This is  demonstrated, appel-          lants  say, by  the district  court ruling  that the  evidence is          insufficient  to support  a  reasonable inference  that the  four          "superior  officer" defendants harbored  a discriminatory intent.          See  Carter,  No. 93-0447B,  slip op.  at  23-24 (D.R.I.  Nov. 9,          ___  ______          1994); see also supra  note 4.  Appellants therefore  insist that                 ___ ____ _____          they  were entitled  to qualified  immunity because,  viewing the                                          7          disputed evidence most favorably  to Carter, reasonable officials          situated in  their circumstances should not  have understood that                                                  ___          their conduct violated Carter's established right to be free from          race or gender discrimination.  See Burns, 907 F.2d at 235-36.                                            ___ _____                    While this interlocutory appeal was pending, the United          States  Supreme Court decided Johnson  v. Jones, 115  S. Ct. 2151                                        _______     _____          (1995).  Displacing our  longstanding precedents allowing  inter-          locutory  appeals from  virtually all  rulings denying  qualified          immunity  defenses  at  summary  judgment, see,  e.g.,  Unwin  v.                                                     ___   ____   _____          Campbell,  863 F.2d 124, 128  (1st Cir. 1988),  the Supreme Court          ________          held that                     a defendant,  entitled to invoke  a qualified                    immunity  defense, may not  appeal a district                    court's  summary  judgment  order insofar  as                    that  order  determines  whether or  not  the                    pretrial record sets forth a  'genuine' issue                    of fact for trial.            Johnson, 115 S. Ct. at 2159.  Recently, this court summarized the          _______          Johnson message:          _______                    Thus,  on the  one hand,  a  district court's                    pretrial rejection of  a proffered  qualified                    immunity defense  remains immediately appeal-                    able as a collateral order to the extent that                    it  turns on  a pure  issue of  law, notwith-                    standing  the absence of a final judgment. On                    the other hand,  a district court's  pretrial                    rejection of a  qualified immunity defense is                    not immediately appealable to the extent that                    it turns on . . . an issue of fact . . . . In                    such a  situation, the movant  must await the                    entry of final judgment before  appealing the                    adverse ruling.            Stella v.  Town of Tewksbury,  __ F.3d  ___, ___ (1st  Cir. 1995)          ______     _________________          [No. 95-1223, 1995 U.S. App. LEXIS 23942, at *7-8 (1st  Cir. Aug.          23, 1995)].                                          8                    Johnson  emphasized  that  routinely  allocating  fact-                    _______          intensive  inquiries  to  appellate  courts  entails  significant          delays  and imprudent use of scarce  judicial resources, since an          appellate  court may have to  wade through a huge, underdeveloped          pretrial record  to resolve especially  "nebulous" factual  ques-                                                             _______          tions such  as a defendant's  "intent."  Johnson,  115 S.  Ct. at                                         ______    _______          2158 (emphasis added).                      Appellants'  first  reaction  to  Johnson  is  to  mis-                                                      _______          characterize  the summary judgment ruling in this case as a "law-          based"    rather than  a "fact-based"    denial of  summary judg-          ment.    Johnson  explicitly  directs that  "a  district  court's                   _______          pretrial rejection of a qualified immunity defense is not immedi-          ately appealable to the extent that it turns on . . . an issue of          fact . . .  ."  Stella,  __ F.3d at ___  [No. 95-1223, 1995  U.S.                          ______          App.  LEXIS  23942, at  *7-8 (1st  Cir.  Aug. 23,  1995)] (citing          Johnson,  115 S.  Ct.  at 2159).    Determining the  presence  or          _______          absence of discriminatory "intent" based  on evidentiary proffers          at summary judgment entails a quintessential  factual assessment,                                                        _______          see Broderick v. Roache, 996 F.2d 1294 (1st Cir. 1993) (normally,          ___ _________    ______             1983 defendants  are  not entitled  to  brevis disposition  on          summary  judgment  where  qualified  immunity  defense  turns  on          factual determination  as to  their subjective intent),  which is          part and parcel of the "merits" dispute on the claims brought  by          Carter in this case.                      Second,  appellants contend, citing  Harris, 114 S. Ct.                                                         ______          367  (1993), that their conduct, as alleged, was not "objectively                                          9          abusive"     as a matter of law     since it was not sufficiently                       __ _ ______ __ ___          egregious to support a  reasonable inference that appellants were          motivated by race or gender discrimination:                     [Such a standard]  would permit any  minority                    [worker] to  allege anything against  a white                                        ________                    male  [supervisor] and force  that white male                    to  a jury  trial.   For example,  a minority                    could                     allege  a violation  of the  equal protection                    clause because a white supervisor said hello,                    one time, to a  white worker before saying it                    to the  minority worker.  That  lawsuit would                    obviously allege the  violation of a  clearly                    established  right [to  be free  from] racial                    discrimination),  but  it  would  not  allege                    facts that violated that right.                    _____          Supplemental  Brief for  Appellants  at 4.    Given the  evidence          adduced by Carter at summary judgment, see Fed. R. Civ. P. 56(e),                                                 ___          we reject this artificial characterization as well.                      For summary  judgment purposes, all evidence in genuine          dispute must be  viewed in  the light most  favorable to  Carter.          The district court  found that Carter  adduced evidence that  (i)          each  appellant had  been given  written  notice of  a pervasive,          continuing campaign of workplace harassment and  disparate treat-          ment aimed  at her, see  supra pp.  2-3, (ii) each  appellant had                              ___  _____          authority to redress her  complaints, and (iii) all failed  to do          so.  In  this factual  setting, Harris does  appellants no  good,                                          ______          even as an analog.5                     For one thing, contrary  to appellants' contention, see                                                                        ___          supra  pp. 6-7,  the Harris  Court not  only did  not  purport to          _____                ______                                        ____________________               5We  need not  test the  assumption implicit  in appellants'          analogy; viz., that Harris, a sexual harassment case, defines the                              ______          boundaries of racial harassment claims as well.                                          10          prescribe  an evidentiary threshold for establishing "objectively          abusive  conduct," it  explicitly  noted that  merely because  an          earlier decision "present[ed]  some especially egregious examples          of  harassment, [it did] not mark the [lower] boundary of what is          actionable."   Harris, 114  S. Ct  at 371.   Moreover,  the Court                         ______          noted that                      whether  an environment is "hostile" or "abu-                    sive"  can be determined  only by  looking at                                                               __                    all the circumstances. These may  include the                    ___ ___ _____________                    frequency of the discriminatory  conduct; its                    _________                    severity; whether it is  physically threaten-                    ________                 __________ _________                    ing or humiliating,  or a mere  offensive ut-                    ___    ___________                    terance; and whether  it unreasonably  inter-                    feres with an  employee's work performance. .                    . . [N]o single factor is required.          Id. (emphasis  added).  The  factual allegations  attested to  by          ___          Carter, relating  to conduct  and context,  are presumed true  at          this stage  in the case, see supra pp. 2-3, and must be evaluated                                   ___ _____          by  the  ultimate factfinder  with a  view  to their  adequacy as          support for a reasonable  inference on the "nebulous"  element of          discriminatory "intent."  Thus,  her factual allegations call for          precisely the  type of fact-intensive inquiry  that Johnson coun-                                                              _______          sels against, as an inappropriate judicial exercise on interlocu-          tory review.                     Furthermore, the "conduct" we must deem established for          summary  judgment purposes in this case cannot be confined to the          straitjacket designed for it by appellants (viz., "a white super-          visor said hello, one time, to a white worker before saying it to                            ___ ____          the minority worker").  Rather, their  hypothetical substantially          understates  the  allegations  actually  attested  to  by Carter.                                          11          Consequently, we need not address their artificial construct.                    Carter  expressly attests,  for example,  that repeated          racial and  gender-based epithets were directed  against her, and          that appellants  condoned this harassment by  their knowing inac-          tion.   We  can discern  no permissible  ground for  treating the          district  court ruling    that  there was a  trialworthy issue of          fact as to whether appellants harbored a discriminatory intent             as  an  immediately  appealable  law-based  decision  within  the                                           ___          meaning of Johnson, 115 S. Ct. at 2159.6                      _______                    Johnson announces a jurisdictional rule     signaling a                    _______          new day in the First Circuit, see Stella, __ F.3d at ___ [No. 95-                                        ___ ______          1223, 1995 U.S. App. LEXIS 23942, at *9 (1st Cir. Aug. 23, 1995)]              and  not one  to be  undone  by recasting  fact-based rulings          denying summary judgment on qualified immunity defenses into law-          based "collateral  orders" immediately appealable under  Cohen v.                                                                   _____          Beneficial Indus. Loan Corp.,  337 U.S. 541 (1949).   See Elliott          ____________________________                          ___ _______          v. Thomas, 937 F.2d 338, 341 (7th Cir. 1991) ("By sleight of hand             ______          [defendants] can turn any defense on the merits into a defense of          qualified immunity."),  cert. denied, 502 U.S. 1121  (1992).  The                                  _____ ______          Johnson rule would be undermined     its important aims frustrat-          _______          ed, see, e.g., Johnson, 115 S.  Ct. at 2158 (noting, inter  alia,              ___  ____  _______                               _____  ____          "danger of  denying justice  by delay")     were defendant  offi-                                        ____________________               6Likewise, the  district court's ruling  -- that there  is a          trialworthy  issue of fact as to the existence of an "affirmative          link"  between  appellants' acts  or  omissions  and the  alleged          deprivation of civil rights, see, e.g., Figueroa v. Aponte-Roque,                                       ___  ____  ________    ____________          864  F.2d 947,  953  (1st Cir.  1989)     is  not  an immediately          appealable law-based decision.  Johnson, 115 S. Ct. at 2159.                                           _______                                          12          cials,  spurred  by the  prospect of  delay  and the  leverage it          occasions, permitted to contrive insubstantial "issues of law" as          grounds for interlocutory review.                                          III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    As  Johnson  precludes  interlocutory  review   of  the                        _______          district court  order  denying summary  judgment  on  appellants'          qualified  immunity defenses,  founded  on the  fact-based ruling          that there was a  trialworthy issue of fact as  to whether appel-          lants acted with discriminatory intent, their appeal is dismissed                                                  _________________________          for lack of appellate jurisdiction, with costs to appellee.           __________________________________  ____ _____ __ ________                    SO ORDERED.                     SO ORDERED.                    __ _______                                          13
