
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2320                                     RHODA TANG,                                 Plaintiff, Appellee,                                          v.                 STATE OF RHODE ISLAND, DEPARTMENT OF ELDERLY AFFAIRS             and MAUREEN MAIGRET and SUSAN SWEET, in their individual and                                 official capacities,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Rebecca Tedford Partington,  Assistant Attorney General, with whom            __________________________        Jeffrey B. Pine, Attorney General, was on brief for appellants.        _______________            Dennis J. Roberts  II with whom Law  Offices of Dennis J.  Roberts            _____________________           __________________________________        II was on brief for appellee.        __                                 ____________________                                   August 11, 1997                                 ____________________                 BOUDIN, Circuit Judge.   In the district  court, Maureen                         _____________            Maigret and Susan  Sweet moved for summary  judgment, arguing            that Rhoda Tang's  claim against them under 42  U.S.C.   1983            was barred  by qualified immunity.   The district  court held            that  factual  disputes precluded  summary  judgment on  this            issue,  and Maigret  and Sweet  have  taken an  interlocutory            appeal   to  this  court.    Under  governing  Supreme  Court            precedent, we are obliged to dismiss the appeal on procedural            grounds.                 Tang, an Asian  American, has worked as a  public health            nutritionist  at  the  Rhode  Island  Department  of  Elderly            Affairs  since  1974.    In  her  view,  the  Department  has            discriminated  against  her  for   many  years,  in   various            respects, primarily on  account of her race.   The history of            litigation includes a formal administrative charge by Tang of            employment discrimination and  a settlement of the  matter in            1987, and Tang's 1989 discharge and 1992 reinstatement, which            followed union-initiated arbitration.                 In 1996, Tang filed the present action in district court            against  the Department,  Maigret  (former  director  of  the            Department), and Sweet  (then the associate director).   Tang            charged  that she had  been discriminated against  for racial            and other  reasons in the  conditions of  her employment  and            also  had been  subjected to  retaliation on  account  of her            prior  complaint.   Her claims  were based  on Title  VII, 42                                         -2-                                         -2-            U.S.C.     2000e-2 and 3, on 42 U.S.C.     1981 and 1983, and            on counterpart provisions of Rhode Island law.                 After some  preliminary skirmishing,  Maigret and  Sweet            moved  for summary  judgment  as to  the  section 1983  claim            against them on grounds of qualified immunity.  They conceded            that there  was a clearly  established right to be  free from            racial  discrimination.     But,   relying  upon   Harlow  v.                                                               ______            Fitzgerald,  457  U.S.  800,  819  (1982),  and  Anderson  v.            __________                                       ________            Creighton, 483 U.S. 635,  638-39 (1987), they argued  that an            _________            objectively  reasonable  person  would  not  think  that  the            conduct attributed to them by Tang violated that right.                   Some  of  the incidents  cited  by Tang  as  examples of            racial discrimination or retaliation would strike many people            as tame  (for example, that  she was given too  many clerical            tasks); others might be more  serious.  But Maigret and Sweet            sought  to  narrow  the  focus  by  asserting that  each  was            directly linked only to one  or two incidents.  Tang answered            that  factual  issues,  including   the  defendants'  alleged            discriminatory intent, precluded summary judgment.                 In October 1996,  the district court filed  a memorandum            and  order  concluding  that  "the  [individual]  defendants'            motion for qualified immunity must  be and is hereby deferred            until completion of the trial  of the plaintiff's case."  The            court  declined to "detai[l] the allegations the parties have            made" but  explained: "It suffices  to say that I  agree with                                         -3-                                         -3-            plaintiff's counsel that  the vast majority of the  facts are            in dispute."  This appeal followed.                 Although  Tang defends the district court's order on the            merits, she also says that we have no authority to review the            district court's order.   The objection, couched  in language            taken from a recent Supreme  Court case, is that "a defendant            entitled  to  invoke  a qualified  immunity  defense  may not            appeal a  district court  summary judgment  order insofar  as            that order determines whether or not the pretrial record sets            forth a `genuine issue of fact  for trial.'"  See Johnson  v.                                                          ___ _______            Jones, 115 S. Ct. 2151, 2159 (1995).            _____                 The  Supreme Court  had  earlier  held  in  Mitchell  v.                                                             ________            Forsyth, 472 U.S. 511, 530  (1985), that despite the ordinary            _______            requirement  of finality, a  denial of qualified  immunity on            legal grounds is immediately  appealable under the collateral            order doctrine.  But in Johnson, it narrowed this opportunity                                    _______            by  saying that  an  interlocutory appeal  from  a denial  of            immunity  would not  be permitted  where  the district  court            found  that a  genuine issue  of  material fact  precluded an            immediate grant of  qualified immunity.  115 S.  Ct. at 2156-            58.  Accord Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996).                 ______ _______    _________                 In  construing these cases,  this court has  spelled out            what is  implicit in Johnson,  namely, that it does  not help                                 _______            the official appealing a denial of immunity to argue that the            district  court erred in  finding a  material issue  of fact.                                         -4-                                         -4-            Diaz  v. Diaz  Martinez, 112  F.3d  1, 4-5  (1st Cir.  1997);            ____     ______________            Stella  v. Kelley, 63 F.3d 71, 77-78  (1st Cir. 1995).  True,            ______     ______            such  an error can be described as  an error of law.  But, as            the  Supreme  Court  made  clear,  Johnson's  limitation   on                                               _______            immediate  review rests primarily  on a prudential  desire to            avoid  bringing  evidentiary  disputes to  the  appeals court                             ___________            except as  part of a final judgment.   Johnson, 115 S. Ct. at                                                   _______            2156-58.                 In  this case,  the  district  court  did  not  identify            specific  factual issues  or  explain  its  ruling,  but  its            reasoning probably  lay along  one or  both of  two different            lines:  that disputed  incidents trivial in  themselves might            add up to something  more sinister as part  of a pattern,  or            that  some of  the  incidents (such  as  the later  withdrawn            discharge  of Tang in 1989)  might not be  so trivial at all.            Neither  theory is impossible  in the  abstract.   See, e.g.,                                                               ___  ____            Carter v. Rhode Island, 68 F.3d 9, 13 (1st Cir. 1995).            ______    ____________                 Whether  the evidence adduced by Tang created a material            issue of fact under summary judgment standards is a different            question; to  decide it,  we would have  to describe  in some            detail  the events  cited by  Tang and  the inferences  as to            defendants' intent  that might, or  might not, be  drawn from            the episodes alleged.   But this is the  very type of factual            dispute  that  Johnson  holds  to  be  premature  so  far  as                           _______                                         -5-                                         -5-            appellate  review is concerned.  Right or wrong, the district            court's ruling is not subject to immediate appeal.                   The defendants counter by saying that  subjective intent            is irrelevant to  qualified immunity.  They  concede arguendo                                                                 ________            each  of the  few incidents  directly  involving them  (e.g.,                                                                    ____            Maigret's  allegedly   inadequate  investigation   of  Tang's            complaint that  another department  employee demanded  to use            Tang's computer although other machines were available).  But            drawing upon the Harlow-Anderson objective  test of qualified                             ______ ________            immunity, they  say that  no reasonable  person could  regard            these actions as unlawful discrimination.                 We  think that  the Harlow-Anderson objective  test does                                     ______ ________            not  automatically resolve  a qualified  immunity  defense in            favor   of  the  defendant  in  a   case  of  alleged  racial            discrimination or retaliation.   The essence of  such claims,            or  at least one  standard version, is  that official actions            that  might  otherwise  be  defended  as   reasonable  become            illegitimate when taken out of  racial bias or in revenge for            a prior complaint.   See Alexis v. McDonald's  Restaurants of                                 ___ ______    __________________________            Mass., Inc., 67 F.3d 341, 354 (1st Cir. 1995) (citing cases).            ___________            To employ a wholly objective test would wipe out many, if not            most, of these claims.                 The  objective test focuses on the reasonableness of the            official's conduct independent of motive.  It is rarely going            to be manifestly  unreasonable, judged apart from  motive, to                                         -6-                                         -6-            assign  particular  tasks  to  an  employee,  move  her  file            cabinet, alter  her parking  arrangements or  do most  of the            things  of  which Tang  complains.   But  because  of special            constitutional  or statutory  protections,  some motives  can                                                        ____            convert relatively minor slights into causes of action.   Cf.                                                                      ___            Rutan v. Republican Party of Illinois, 497 U.S. 62,  75 & n.8            _____    ____________________________            (1990).                 An unresolved  tension  exists  between  such  specific-            intent  torts  and  the  objective Harlow-Anderson  qualified                                               ______ ________            immunity test.1   That test was designed to  meet, not claims            of  racial  bias  or  retaliation,  but  rather   ill-founded            allegations  that an official action was "malicious" or taken            "in  bad  faith"--characterizations that  defeated  qualified            immunity at common law.   Prosser and Keeton on Torts    132,                                      ___________________________            at 1059-62 (5th ed. 1984).  In all events, the circuit courts            have almost uniformly  refused to apply a  strictly objective            test of qualified  immunity in racial and  retaliation cases.            See Broderick v. Roache, 996 F.2d 1294, 1298 (1st Cir. 1993);            _____________    ______            Crawford-El, 93 F.3d at 817 (citing cases).             ___________                 The  defendants  strongly  suggest that  the  failure to            allow an appeal now, in a  case like this one, will  undercut            the protection that qualified immunity is supposed to give to                                            ____________________                 1The Supreme Court may clarify matters next fall when it            confronts a qualified immunity defense offered to a charge of            retaliatory  motive.   Crawford-El v.  Britton,  93 F.3d  813                                   ___________     _______            (D.C. Cir. 1996)  (en banc), cert. granted,  65 U.S.L.W. 3817                                         _____________            (1997).                                         -7-                                         -7-            a  government official  in  a  weak case  not  only to  avoid                                    ________________            liability  but to  avoid trial  itself.   Of course,  nothing            prevents  a district court from granting summary judgment for            the defendants where proof of  a racial or retaliatory motive            is very  thin.  But  this does not help  government officials            seeking an early  exit where the  district court thinks  that            factual issues remain, for, in that event, Johnson still bars                                                       _______            an immediate appeal.                 Johnson involved a factual dispute  about what occurred,                 _______            not an issue of motive,  and its full implications for motive            cases may not have been  entirely apparent.  See Johnson, 115                                                         ___ _______            S. Ct.  at  2154, 2158.    Given the  policies  set forth  in            Harlow, 457  U.S. at 817-18,  and Anderson, 483 U.S.  at 641,            ______                            ________            officials arguably  do need  some special  protection against            charges  of improper motive, which  are easily made and which            may be supported simply by an alleged remark of the defendant            made when  only the plaintiff  was present.  The  problem for            officials facing such lawsuits is very real.                 In a few circuits, it appears that courts have responded            by  squeezing   Johnson  a   bit  and  effectively   granting                            _______            interlocutory review  of denials of qualified  immunity based            on  alleged factual disputes  about intent; but  this circuit            and  a number  of others  have resisted  that course.2   More                                            ____________________                 2Compare  Walker  v.  Schwalbe, 112  F.3d  1127, 1131-32                  _______  ______      ________            (11th Cir. 1997) and Blue v.  Koren, 72 F.3d 1075, 1083-84  &                             ___ ____     _____            n.6  (2d Cir.  1995) (exercising  pendent jurisdiction)  with                                                                     ____                                         -8-                                         -8-            inventively,  the District  of  Columbia  Circuit, which  had            developed  a  heightened pleading  standard  for  such motive            claims, recently  abandoned it in favor of  imposing a "clear            and  convincing evidence" standard of proof.  Crawford-El, 93                                                          ___________            F.3d at 818, 823.                 Because  the  Supreme  Court   has  granted  review   in            Crawford-El,  an answer to  the quandary may  be forthcoming,            ___________            but we need not hazard our  own guess about the outcome.   In            the  present case,  Maigret and  Sweet  did not  ask for  any            special  evidentiary  standard  to be  used  in  the district            court--but  merely   for  summary   judgment  granting   them            qualified immunity.  The district court denied it because  of            a  perceived factual dispute,  and under Johnson  that ruling                                                     _______            cannot be reviewed on interlocutory appeal.                 Appeal dismissed.                  ________________                                            ____________________            Berdec a-P rez  v. Zayas-Green, 111  F.3d 183, 184  (1st Cir.            ______________     ___________            1995) and  Chateaubriand v.  Gaspard, 97  F.3d 1218,  1223-24                  ___  _____________     _______            (9th Cir. 1996) and Shinault v. Cleveland County Bd., 82 F.3d                            ___ ________    ____________________            367, 370-71  (10th Cir. 1996),  cert. denied, 117 S.  Ct. 740                                            ____________            (1997).                                         -9-                                         -9-
