
USCA1 Opinion

	




        December 4, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1726                                      SUSAN HAYES,                                 Plaintiff, Appellee,                                          v.                     STATE OF RHODE ISLAND DEPARTMENT OF BUSINESS                                     REGULATION,                                 Defendant, Appellee.                                                                                      __________                                 MAURICE A. PARADIS,                                Defendant, Appellant.                                 ____________________                     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,                                           ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Steven  E. Snow,  Thomas R.  Noel and  Partridge,  Snow &  Hahn on            _______________   _______________      ________________________        brief for appellant.            Amato  A.  DeLuca,  Miriam   Weizenbaum  and  Mandell,   DeLuca  &            _________________   ___________________       ____________________        Schwartz, Ltd. on brief for appellee, Susan Hayes.        ______________                                 ____________________                                 ____________________                      Per Curiam.  Defendant-appellant Maurice C. Paradis                      __________            has filed this interlocutory appeal from the district court's            denial of his  motion for  summary judgment on  the issue  of            qualified immunity that would shield him from damages in this            sex  discrimination  suit.    Plaintiff-appellee  Susan Hayes            argues that under Johnson v. Jones, ___  U.S. ___, 115 S. Ct.                              _______    _____            2151 (1995), this court lacks appellate jurisdiction.                      Paradis has raised two issues on appeal.  The first            issue is  a  purely legal  one:   whether in  1991, when  the            challenged conduct occurred, there was a clearly  established            right  under  the  fourteenth  amendment's  equal  protection            clause to be  free from sex discrimination  in the workplace.            Under Johnson,  "a district  court's pretrial rejection  of a                  _______            proffered  qualified  immunity  defense  remains  immediately            appealable  as a collateral order to the extent that it turns            on a pure issue  of law . . .  ."  Stella v. Kelley,  No. 95-                                               ______    ______            1223, slip op.  at 10 (1st Cir.  Aug. 23, 1995).   Exercising            this jurisdiction, we  summarily affirm the  district court's                                   _________ ______            purely  legal   determination  that,  at  the   time  of  the            challenged conduct, there existed a clearly established right            under the  fourteenth amendment's equal protection  clause to            be  free from  sex  discrimination  in  the workplace.    See                                                                      ___            Lipsett v.  University of Puerto  Rico, 864 F.2d  881, 884-85            _______     __________________________            (1st  Cir. 1988)  (holding  that sex-based  discrimination is                                         -2-            actionable under 42 U.S.C.   1983 as a violation of the equal            protection clause).                       Paradis' second  argument on appeal  is as follows:            even if there was  a clearly established constitutional right            to be  free from sex  discrimination in the  workplace, "[i]t            cannot  be   said  that   Paradis'  action   was  objectively            unreasonable    given    the   extraordinary    circumstances            confronting him."   Although cloaked as a purely legal issue,            this   argument  is  actually   fact-based.    The  objective            reasonableness of Paradis' conduct (under clearly established            law) will necessarily turn on an  issue of fact:  whether the            conduct  was  motivated by  sex-based  animus.   See  Poe  v.                                                             ___  ___            Haydon,  853 F.2d 418, 431 (6th Cir. 1988), cert. denied, 488            ______                                      ____________            U.S.  1007  (1989).    Under  Johnson,  "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 . . . ."  Stella, supra, at 6-7.  Therefore,                                       ______  _____            we lack jurisdiction to  consider the second issue raised  by            this appeal.                      Affirmed in  part, dismissed in part,  and remanded                      ___________________________________________________            for further proceedings.  Costs to appellee.            _______________________   _________________                                         -3-
