          Case: 17-11971    Date Filed: 05/10/2018   Page: 1 of 7


                                                        [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11971
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 3:15-cv-01211-HES-JRK


ERIC MITCHELL,

                                                               Plaintiff-Appellee,

                                  versus

CITY OF JACKSONVILLE, FLORIDA,

                                                                      Defendant,

GAIL LOPUT,
individually,
KURT WILSON,
individually,
                                                       Defendants-Appellants.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (May 10, 2018)
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Before JULIE CARNES, EDMONDSON, and FRANK HULL, Circuit Judges.



PER CURIAM:



      In this interlocutory appeal, Defendants Chief Gail Loput and Director Kurt

Wilson appeal the district court’s denial of their motion for summary judgment on

Plaintiff Captain Eric Mitchell’s claims for race discrimination and retaliation, in

violation of 42 U.S.C. §§ 1981 and 1983. Defendants’ motion was based, in

pertinent part, on qualified immunity. No reversible error has been shown; we

affirm in part and dismiss in part.

      Plaintiff, an African-American male, began his employment with the

Jacksonville Fire and Rescue Department (“JFRD”) in 2000. In 2014, Plaintiff

accepted a position within the JFRD Training Academy. Training Academy

employees were eligible for a salary increase and were permitted to work a more

flexible work schedule than employees of other JFRD divisions.

      In August 2015, Chief Loput was appointed the Chief of the Training

Academy. Shortly thereafter, Chief Loput assigned a “liaison” to relay orders to

other members of the Training Academy, including to Plaintiff. As a result,

Plaintiff -- who was a Captain and the second-highest ranking officer in the

Training Academy next to Chief Loput -- began receiving orders from a lower-


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ranking lieutenant, in violation of the JFRD’s chain-of-command policy. When

Plaintiff expressed to Chief Loput his concerns about the use of a liaison, Chief

Loput told Plaintiff that it was “easier to talk to” the liaison.

      Chief Loput also treated Plaintiff differently from his non-minority co-

workers. For example, Chief Loput avoided one-on-one contact with Plaintiff,

excluded Plaintiff on an email announcing a department-wide staff meeting, sent

Plaintiff on unnecessary errands, and denied Plaintiff’s previously-approved travel

leave for a leadership training conference.

      Plaintiff -- who was the only African-American at the Training Academy --

believed Chief Loput was discriminating against him based on his race. On 21

August 2015, Plaintiff met with Director Wilson to discuss his concerns. Director

Wilson took no action to address Plaintiff’s concerns and, instead, contacted the

JFRD’s Equal Opportunity and Equal Access Office to request advance warning if

Plaintiff filed a complaint. On 28 August 2015, Plaintiff filed a complaint with the

City of Jacksonville’s Equal Opportunity/Equal Access Office (“EO/EA”), alleging

race discrimination.

      Afterwards, Plaintiff contends Chief Loput began to sabotage Plaintiff’s

work performance -- and ultimately transferred him out of the Training Academy -

- in retaliation for his having filed a complaint with the EO/EA. For instance,

Plaintiff was responsible for coordinating training classes for new recruits; two of


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Plaintiff’s co-workers had volunteered to assist him with this task. In September

2015, Chief Loput ordered the co-workers not to help Plaintiff and, instead, to “let

[Plaintiff] fail.” Chief Loput then ordered the co-workers to register for a

conflicting training class -- while also telling them they were not in fact required to

attend that class -- so that it would appear on paper that they were unavailable to

assist with Plaintiff’s training classes. Chief Loput also instructed the co-workers

to communicate with Plaintiff only via email. In addition, when Plaintiff was not

physically present at his desk, Chief Loput’s designated liaison asked regularly

about Plaintiff’s whereabouts; he would point to Plaintiff’s empty desk and say

“we got to get rid of this one.” On 2 October 2015, Chief Loput -- with Director

Wilson’s approval -- transferred Plaintiff out of the Training Academy.

       Plaintiff filed this civil action, asserting claims against Defendants, in their

individual capacity, for race discrimination and retaliation. 1 Defendants moved for

summary judgment arguing, among other things, they were entitled to qualified

immunity. The district court denied Defendants’ motion, concluding that genuine

disputes of fact precluded summary judgment.

       The denial of a motion for summary judgment based on qualified immunity

“is an immediately appealable collateral order, provided that it concerns solely the

pure legal decision of (1) whether the implicated federal constitutional right was

1
  Plaintiff also named the City of Jacksonville as a defendant. The City is not a party to this
interlocutory appeal.
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clearly established and (2) whether the alleged acts violated that law” under the

“core qualified immunity analysis.” Koch v. Rugg, 221 F.3d 1283, 1294-95 (11th

Cir. 2000) (emphasis omitted) (citing Johnson v. Jones, 115 S. Ct. 2151, 2156-57

(1995)). The appeal “must present a legal question concerning a clearly

established federal right that can be decided apart from considering sufficiency of

the evidence relative to the correctness of the plaintiff’s alleged facts.” Id. at 1294.

We have no jurisdiction if the defendant “challenges only sufficiency of the

evidence relative to a predicate factual element of the underlying constitutional

tort.” Id. at 1296 (quotation omitted).

       To the extent Defendants argue they are entitled to qualified immunity on

Plaintiff’s race discrimination claim because a reasonable official under the

circumstances could have believed that Defendants’ conduct was lawful, we have

jurisdiction to review that legal issue on appeal. Viewed in the light most

favorable to Plaintiff,2 the record establishes that Plaintiff was treated less

favorably than his non-minority co-workers. Plaintiff has also proffered some

evidence that his treatment was racially motivated. Defendants, on the other hand,

contend that a lawful basis existed for utilizing a liaison to communicate with

Plaintiff: that it was “easier” for Chief Loput.



2
 Because the district court did not identify the facts it relied on in denying Defendants’ motion,
we conduct our own factual analysis. See Stanley, 219 F.3d at 1287.
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      That Defendants may have acted, in part, with discriminatory motive does

not necessarily defeat their entitlement to qualified immunity. See Foy v. Holston,

94 F.3d 1528, 1534-35 (11th Cir. 1996). When improper motive is part of the

underlying constitutional tort -- and where evidence exists of mixed motives -- a

defendant is still entitled to qualified immunity if “the record indisputably

establishes that the defendant in fact was motivated, at least in part, by lawful

considerations.” Stanley v. City of Dalton, 219 F.3d 1280, 1296 (11th Cir. 2000)

(emphasis in original).

      Here, the record does not establish “indisputably” that Defendants’ conduct

was in fact motivated at least in part by their proffered reason. Instead, evidence in

the record demonstrates that the use of a “liaison” to communicate within a single

division was atypical and that the use of a lower-ranking “liaison” to relay orders

to a higher-ranking officer would violate the JFRD’s chain-of-command policy.

We also note that Defendants have proffered no legitimate, non-discriminatory

reason for the other conduct alleged by Plaintiff: that Chief Loput avoided one-on-

one contact with Plaintiff, excluded Plaintiff from a department-wide email,

assigned Plaintiff menial tasks, and denied Plaintiff’s travel leave. At this stage in

the proceedings, the district court concluded properly that Defendants were

unentitled to qualified immunity on Plaintiff’s claim for race discrimination.




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       Because Defendants’ remaining arguments on appeal attack the sufficiency

of the evidence supporting Plaintiff’s substantive claims for race discrimination

and retaliation -- and are not pertinent to the core qualified immunity analysis -- we

lack jurisdiction to consider them in this interlocutory appeal. See Koch, 221 F.3d

at 1296; Stanley, 219 F.3d at 1286-87. 3

       AFFIRMED IN PART; DISMISSED IN PART.




3
  About Plaintiff’s race discrimination claim, Defendants contend that Plaintiff (1) failed to show
that he suffered an adverse employment action; (2) failed to establish the existence of a
similarly-situated employee treated more favorably than he was; (3) failed to show that
Defendants’ proffered reason for utilizing a liaison was false; and (4) had no evidence of race
discrimination other than his own hunch. About Plaintiff’s retaliation claim, Defendants argue
that Plaintiff (1) failed to show that he had an objectively reasonable belief that he suffered race
discrimination; (2) failed to show that he suffered an adverse employment action; and (3) failed
to show that Defendants’ proffered reason was false or that retaliation was the true reason for his
transfer.
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