                                                            [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                    FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 June 21, 2006
                                 No. 05-12231                 THOMAS K. KAHN
                           ________________________               CLERK

                      D. C. Docket No. 02-00190-CV-WLS-1

JEFFERY GARDNER,
ROGER CLAYTON,

                                                             Plaintiffs-Appellees,

                                        versus

CITY OF CAMILLA, GEORGIA, et al.,

                                                                     Defendants,

MIKE SCOTT, Individually and in
his official capacity as City Manager
of the City of Camilla, Georgia,
DAVID IRWIN, Individually and in
his official capacity as Fire
Chief of City of Camilla, Georgia,

                                                          Defendants-Appellants.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Georgia
                        _________________________

                                  (June 21, 2006)
Before BIRCH, CARNES and BRUNETTI *, Circuit Judges.

PER CURIAM:

       Mike Scott and David Irwin, defendants-appellants in this employment

discrimination action, appeal the district court’s denial of their motion for

summary judgment based on qualified immunity as to the race discrimination and

retaliation claims brought against them pursuant to 42 U.S.C. § 1983. First, we

find that because Scott has essentially raised only issues of evidence sufficiency as

to the discrimination claims, we are left without jurisdiction to review them upon

interlocutory appeal. Second, after confirming our jurisdiction as to the retaliation

claims, we find the district court erred in denying qualified immunity because there

is no clearly established right under the Equal Protection Clause to be free from

retaliation. Accordingly, we DISMISS IN PART, VACATE IN PART, and

REMAND for further proceedings in accordance with this opinion.

                                    I. BACKGROUND

       This appeal relates to four separate actions that were later consolidated.

Jeffery Gardner and Roger Clayton, both black male captains of the fire

department of the City of Camilla, Georgia (the “City”), filed separate complaints

against the City and Scott, the city manager. Gardner and Clayton alleged claims


       *
         Honorable Melvin Brunetti, Senior Judge, United States Court of Appeals for the Ninth
Circuit, sitting by designation.

                                               2
of race discrimination pursuant to 42 U.S.C. § 1983 based on the failure of the City

and Scott to promote them to the position of fire chief and on their decision to hire

Irwin, a white firefighter, for the position. Gardner and Clayton also filed separate

complaints against the City, Scott, and Irwin, alleging claims of retaliation

pursuant to § 1983.1

       The defendants filed a motion for summary judgment, arguing, inter alia,

that (1) Scott and Irwin were entitled to qualified immunity as to the § 1983 race

discrimination and retaliation claims; (2) Gardner and Clayton could not show that

Scott’s legitimate, nondiscriminatory reasons for not promoting Gardner and

Clayton were pretextual; and (3) Gardner and Clayton did not suffer an adverse

employment action sufficient to support a retaliation claim. The district court

denied the motion on the grounds that (1) there was a genuine issue of material fact

as to whether the legitimate, nondiscriminatory reasons Scott gave for not

promoting Gardner and Clayton were a pretext for racial discrimination; (2)

although Gardner and Clayton had established a prima facie case of retaliation,



       1
          Gardner and Clayton each also alleged claims of (1) retaliation and race discrimination
(including hostile work environment) under 42 U.S.C. § 1981 and Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e-2(a), 3(a), and (2) interference with an employment
relationship and emotional distress under Georgia law. The district court granted summary
judgment in favor of Scott and Irwin with respect to these claims. This appeal concerns only the
district court’s denial of summary judgment based on qualified immunity with respect to the
§ 1983 discrimination and retaliation claims, and so we do not address the remaining claims.
Further, the City of Camilla is not a party to this appeal.

                                                3
Scott and Irwin had failed to rebut it with a legitimate, nondiscriminatory reason

for their actions; and (3) neither Scott nor Irwin was entitled to qualified immunity

because “the right to be free from racial discrimination is so ‘clearly established’

that it is axiomatic and requires no citation to Eleventh Circuit precedent,” and “if

the allegations prove true, then Defendants[’] actions violated this right.” R1-62 at

13.

      On appeal, Scott argues that he is entitled to qualified immunity as to

Gardner and Clayton’s § 1983 discrimination claims because they failed to produce

“significant probative evidence” of racially discriminatory intent in his failure to

make either of them fire chief. He further asserts that the district court, in its brief

statement confirming the general unconstitutionality of racial discrimination, failed

properly to complete the qualified immunity analysis as to whether the right

allegedly violated had been clearly established. More specifically, he argues that,

even if there is evidence of discriminatory intent, he is still entitled to qualified

immunity under our decision in Foy v. Holston 2 because he was also motivated by

legitimate, nondiscriminatory reasons. Scott and Irwin then both argue that they

are due qualified immunity as to the retaliation claims because Gardner and




       2
           94 F.3d 1528 (11th Cir. 1996)

                                            4
Clayton improperly asserted a violation of their equal protection rights in

connection with their § 1983 retaliation claims.

                                  II. DISCUSSION

      “Qualified immunity offers complete protection for government officials

sued in their individual capacities if their conduct ‘does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). We

review denials of qualified immunity de novo, resolving all issues of material fact

in favor of the plaintiff. Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000).

A. Racial Discrimination Claims

      1. Jurisdiction

      Because this appeal arises from a denial of summary judgment rather than

from a final order, we must first determine whether we have jurisdiction. “We

review questions of subject matter jurisdiction de novo.” See Milan Express, Inc.

v. Averitt Express, Inc., 208 F.3d 975, 978 (11th Cir. 2000). “[A] district judge’s

denial of [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 clearly established



                                           5
and (2) whether the alleged acts violated that law” – the two parts of the “‘core

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

2000) (emphasis omitted). In other words, it 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. If the defendant “challenges only sufficiency of the

evidence relative to a ‘predicate factual element of the underlying constitutional

tort,’” we have no jurisdiction. Id. at 1296 (quoting Dolihite v. Maughon ex rel.

Videon, 74 F.3d 1027, 1033 n.3 (11th Cir. 1996)). Such an issue is not

immediately appealable because it “involve[s] the determination of ‘facts a party

may, or may not, be able to prove at trial.’” Id. (quoting Johnson v. Jones, 515

U.S. 304, 313, 115 S. Ct. 2151, 2156) (1995).

      In Koch, we lacked jurisdiction because the interlocutory appeal – based

“solely on the lack of evidence to show racially discriminatory intent in the[]

decision not to hire [the plaintiff-appellee]” – presented “a critical element of the

principal case for trial, rather than core qualified immunity issues.” Id. at 1298.

“When discriminatory intent is a predicate factual element of the underlying

constitutional tort, we have recognized that sufficiency of discriminatory-intent




                                           6
evidence generally is not part of the core qualified immunity analysis.” Id. at

1297.

        As in Koch, Scott here argues that there is a lack of evidence to show

racially discriminatory intent in his decision not to hire either Clayton or Gardner.

Based on this issue alone, we have no jurisdiction. Scott, however, has also argued

that it was not clearly established that his actions violated a constitutional right

held by Clayton and Gardner.3

        3
         The determination of whether federal law is “clearly established” must be made “in light
of the specific context of the case, not as a broad general proposition.” Vinyard, 311 F.3d at
1349. Because the “right the official is alleged to have violated must have been ‘clearly
established’ in a more particularized and hence more relevant sense,” Anderson v. Creighton,
483 U.S. 635, 640 (1987), Scott may be correct that the broad abstract statement by the district
court is technically insufficient. To the extent Scott argues that we have jurisdiction on the basis
of that legal argument, we observe that it is difficult to imagine that a right could be “so ‘clearly
established’ that it is axiomatic and requires no citation to Eleventh Circuit precedent.” In this
case, however, the addition of the words “in the context of employment decisions” would have
sufficed.
         Taking the facts alleged in the light most favorable to Gardner and Clayton, Scott
discriminated against them on the basis of race in hiring Irwin as fire chief. As we noted in
Koch, “race discrimination was prohibited in public employment well before the challenged
employment decision” here. See Koch, 221 F.3d at 1298 n.32 (citing Washington v. Davis, 426
U.S. 229, 239-41, 96 S. Ct. 2040, 2047-48 (1976) and Busby v. City of Orlando, 931 F.2d 764,
775 (11th Cir. 1991) (per curiam)). Further, we have specifically found various race-based
employment decisions by public officials, including those concerning discipline, promotions,
and reclassifications, to be in violation of a constitutional right. See Alexander v. Fulton
County, Ga., 207 F.3d 1303, 1313, 1321 (11th Cir. 2000) (affirming a jury verdict of intentional
employment discrimination by a black sheriff who made race-based employment decisions
concerning white officers with respect to discipline, promotions, transfers, and reclassifications);
Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1064 (11th Cir. 1992) (holding that
intentionally discriminatory hiring and firing practices violated the Equal Protection Clause);
Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1478 (11th Cir. 1991) (recognizing a right
under the Equal Protection Clause to be free from termination because of race).
         Accordingly, despite the district court’s failure to analyze the right violated in a more
specific context, the court was correct in concluding that, because whether Scott acted with
discriminatory intent in hiring Irwin over Gardner or Clayton remains a genuine issue of material

                                                  7
       2. Foy

       More specifically, Scott now argues that, even if there is evidence of

discriminatory intent, he is entitled to qualified immunity under our decision in

Foy v. Holston, wherein we held that “[a]t least when an adequate lawful motive is

present, that a discriminatory motive might also exist does not sweep qualified

immunity from the field even at the summary judgment stage.” Foy, 94 F.3d at

1534-35. We have further clarified, however, that “[a] defendant is entitled to

qualified immunity under the Foy rationale only where, among other things, the

record indisputably establishes that the defendant in fact was motivated, at least in

part, by lawful considerations.” Stanley v. City of Dalton, Ga., 219 F.3d 1280,

1296 (11th Cir. 2000) (emphasis added).

       Although this might appear to raise a legal argument as to the core qualified

immunity issue of whether Scott’s alleged conduct violated a clearly established

constitutional right, it is essentially only an evidence sufficiency issue in the guise

of a question of law. Scott, both here and below, asserted that he chose not to hire

Gardner or Clayton as fire chief because they lacked the requisite leadership and

organizational skills. The district court denied Scott qualified immunity as to the

race discrimination claim with respect to this argument because it found a genuine


fact for trial, summary judgment based on qualified immunity as to the race discrimination
claims was not appropriate on that ground.

                                               8
issue of material fact as to whether the proffered legitimate reasons were in fact

pretext for racial discrimination. Thus, the district court, in essence, found that the

record did not indisputably establish the existence of a nondiscriminatory motive.

As such, the district court did not err in its qualified immunity analysis as to that

issue. In his appeal, based on proffered but unestablished legitimate reasons, Scott

has merely raised a second evidence sufficiency issue, over which we have no

jurisdiction upon interlocutory appeal.

B. Retaliation Claims

      Scott and Irwin both argue that each is entitled to qualified immunity with

respect to Gardner and Clayton’s § 1983 retaliation claims. Because Scott and

Irwin’s argument here is based solely on an issue of law – whether Gardner and

Clayton have presented a constitutional violation – we have jurisdiction over the

denial of qualified immunity as to these claims. See Koch, 221 F.3d at 1294.

Accordingly, we proceed to the argument.

      “The right to be free from retaliation is clearly established as a first

amendment right and as a statutory right under Title VII; but no clearly established

right exists under the equal protection clause to be free from retaliation.” Ratliff v.

DeKalb County, Ga., 62 F.3d 338, 340 (11th Cir. 1995). Here, Gardner and

Clayton both alleged, pursuant to § 1983, that, after they had filed their



                                            9
discrimination actions, Scott and Irwin retaliated against them in violation of their

right to equal protection by (1) relieving them of their training duties in favor of a

less-qualified white individual, (2) denying them training opportunities and

schooling, and (3) diminishing their authority and supervisory duties. Because we

have held that no clearly established right exists under the Equal Protection Clause

to be free from retaliation, even when we take the facts in the light most favorable

to Gardner and Clayton, they cannot demonstrate that the actions of either Scott or

Irwin violated a constitutional right. Accordingly, Scott and Irwin are entitled to

qualified immunity as to the § 1983 retaliation claims.4

                                     III. CONCLUSION

       Scott and Irwin appeal the district court’s denial of their motion for

summary judgment based on qualified immunity with respect to both the

discrimination and retaliation claims brought against them pursuant to 42 U.S.C. §

1983. First, because Scott essentially raises only evidence sufficiency issues as to

the discrimination claims, we lack jurisdiction over the interlocutory appeal of the

district court’s denial of qualified immunity with respect thereto. Second, because



       4
        The appellees also argue that the district court erred in granting summary judgment to
the appellants on the appellees’ § 1981 retaliation claims, finding that such claims were
duplicative of their § 1983 retaliation claims. The appellees failed to perfect an appeal and,
therefore, an appeal of that portion of the district court’s order is not properly before us. See
Campbell v. Wainwright, 726 F.2d 702, 704 (11th Cir. 1984).

                                                 10
Scott and Irwin raise a question of law concerning qualified immunity as to the

retaliation claims, we do have jurisdiction and, because there is no clearly

established right under the Equal Protection Clause to be free from retaliation,

Scott and Irwin are entitled to qualified immunity as to those claims. Accordingly,

we DISMISS the appeal as to the district court’s denial of qualified immunity as to

the race discrimination claims, VACATE as to the denial of qualified immunity

with respect to the retaliation claims, and REMAND for further proceedings

consistent with this opinion.




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