                                                          [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                 No. 07-15025                NOV 10, 2008
                           ________________________        THOMAS K. KAHN
                                                               CLERK
                        D. C. Docket No. 00-00753-CV-CG

C. C., a minor, by
her parents and natural guardians,
Aretha and Chris Andrews,
R. S. H., a minor,
by her parent and natural guardian,
Betty Jean Murphy,


                                                           Plaintiffs-Appellees,

                                      versus

MONROE COUNTY BOARD OF EDUCATION,
MIKE FLOYD,

                                                                   Defendants,

DARENELL PAYNE,

                                                          Defendant-Appellant.
                              ________________________

                      Appeal from the United States District Court
                         for the Southern District of Alabama
                            _________________________

                                   (November 10, 2008)

Before BARKETT and WILSON, Circuit Judges, and POGUE,* Judge.

PER CURIAM:

       On interlocutory appeal, Darenell Payne, a public school principal at

Monroeville Middle School in Monroe County, Alabama, appeals the district

court’s denial of (1) qualified immunity for violation of the Equal Protection

Clause of the Fourteenth Amendment of the United States Constitution by way of

42 U.S.C. § 1983 and (2) state agent immunity for outrage under Alabama law.

We reverse and remand as to qualified immunity and affirm as to state-agent

immunity.

       The facts arise from the alleged sexual molestation and harassment of

Appellees C.C. and R.H. (minors) by a teacher, Michael Floyd, under Payne’s

supervision. On or about January 21, 2000, R.H.’s mother went to the Monroeville

Middle School to inform Payne of her daughter’s allegations of sexual molestation

by a teacher. Payne immediately convened a meeting of the teacher, R.H. and her


       *
        Honorable Donald C. Pogue, United States Court of International Trade Judge, sitting by
designation.

                                               2
mother, during which R.H. repeated her accusations. The teacher denied the

allegations as well as allegations made by another student. Payne thereafter

occasionally looked in on Floyd’s classroom and monitored Floyd’s interaction

with students between classes in the hallways. R.H. alleges that she was further

abused by Floyd after the meeting with Payne.

      In or about May of 2000, the teacher allegedly sexually molested C.C. in an

empty classroom. C.C. unsuccessfully attempted to report the incident to Payne.

C.C. told her parents about the incident and they reported the teacher to the police

department. On May 8, 2000, Payne learned of C.C.’s complaints against the

teacher when the district attorney’s office contacted him and the Superintendent.

Either on the same day or the next day, the Superintendent suspended the teacher

pending an investigation. Since that time, the teacher has not returned to

Monroeville Middle School.

      The Monroeville Middle School sexual harassment policy (the “Policy”)

requires, in relevant part, that (1) upon learning of a complaint, the principal shall

start an immediate investigation into the matter, and (2) the completed

investigation shall be reviewed by the Superintendent or designee and legal

counsel for prompt and appropriate action, if warranted.

      On September 18, 2001, Payne moved for summary judgment on the



                                           3
grounds of, inter alia, qualified immunity and state-agent immunity, which the

district court denied on September 28, 2007. As to qualified immunity on the

equal protection claim, the district court determined that Payne failed to meet his

initial burden to prove that he acted within the scope of his discretionary authority.

The district court found that the Policy “virtually eliminated” Payne’s discretion

“with respect to the handling of sexual harassment allegations.” As to state-agent

immunity on the outrage claim, the district court likewise found that Appellant was

not entitled to state-agent immunity because the Policy required him to investigate

the matter and report the completed investigation to the Superintendent or

designee, and he did not do either. This appeal followed.

      Payne argues that the district court erred in denying him qualified immunity

and state-agent immunity based on its finding that he lacked discretion under the

terms of the Policy that required him to investigate and report complaints of sexual

harassment. “We . . . review the district court’s denial of a motion for summary

judgment on the basis of qualified immunity de novo, viewing the facts in the light

most favorable to the non-moving party.” Bates v. Harvey, 518 F.3d 1233, 1239

(11th Cir. 2008) (citing Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d

1243, 1247 (11th Cir. 2004)). We review de novo the district court’s rulings on

state-agent immunity. See Tinker v. Beasley, 429 F.3d 1324, 1329 (11th Cir. 2005)



                                           4
(per curiam) (citation omitted).

                                        DISCUSSION

       As a threshold matter, we have jurisdiction to consider this appeal insofar as

it presents a legal question (whether Payne acted outside his discretionary

authority) applied to a given set of facts (viewed in favor to the non-moving party)

that may be decided apart from considering the sufficiency of the evidence. See

Koch v. Rugg, 221 F.3d 1283, 1295-96 (11th Cir. 2000). The same holds true as to

state-agent immunity. See Taylor v. Adams, 221 F.3d 1254, 1260 n. 9 (11th Cir.

2000). We will address qualified immunity and state-agent immunity in turn.

I.     Qualified immunity1

       To establish the defense of qualified immunity, the burden is first on the

defendant to establish “that the allegedly unconstitutional conduct occurred while

he was acting within the scope of his discretionary authority.” Harbert Int’l, Inc. v.

James, 157 F.3d 1271, 1281 (11th Cir. 1998) (citing Evans v. Hightower, 117 F.3d

1318, 1320 (11th Cir. 1997)). In turn, to establish that the challenged actions were

within the scope of his discretionary authority, “a defendant must show that those



       1
         We note that the district court denied qualified immunity only as to the equal protection
claims but granted qualified immunity as to the substantive due process claims. As to the latter,
the district court found that Payne did not violate either Appellees’ substantive due process
rights as “he did not cause the deprivation of their rights.” The district court made no mention of
discretionary authority as to the substantive due process claims.

                                                 5
actions were (1) undertaken pursuant to the performance of his duties, and (2)

within the scope of his authority.” Id. at 1282 (citing Lenz v. Winburn, 51 F.3d

1540, 1545 (11th Cir. 1995)). See also Holloman ex rel. Holloman v. Harland,

370 F.3d 1252, 1265-66 (11th Cir. 2004) (“We ask whether the government

employee was (a) performing a legitimate job-related function (that is, pursuing a

job-related goal), (b) through means that were within his power to utilize.”).

      “In applying each prong of this test, we look to the general nature of the

defendant’s action, temporarily putting aside the fact that it may have been

committed for an unconstitutional purpose, in an unconstitutional manner, to an

unconstitutional extent, or under constitutionally inappropriate circumstances.” Id.

at 1266 (emphasis added). In other words, when determining the scope of

discretionary authority, a court looks to the general nature of a defendant’s action,

not the specific unconstitutional conduct. See Harbert Int’l, 157 F.3d at 1282

(providing that “[t]he inquiry is not whether it was within the defendant’s authority

to commit the allegedly illegal act”). “Of course, we must be sure not to

characterize and assess the defendant’s act at too high a level of generality” but

instead “we consider a government official’s actions at the minimum level of

generality necessary to remove the constitutional taint.”   Harland, 370 F.3d at

1266. Applied here, the proper scope of the inquiry is whether investigating and



                                           6
reporting sexual harassment complaints generally fell within Payne’s duties and

authority.

       Having defined the proper scope of the inquiry, we turn to the two-prong

test. The first prong asks whether investigating and reporting complaints of sexual

harassment is within Payne’s duties as a principal. See id. at 1266 (“Put another

way, to pass the first step of the discretionary function test for qualified immunity,

the defendant must have been performing a function that, but for the alleged

constitutional infirmity, would have fallen with his legitimate job description.”).

But for Payne’s alleged failure to act in accordance with the Policy, investigating

and reporting such complaints falls well within Payne’s duties as a principal.1 The

second prong asks whether investigating and reporting complaints of sexual

harassment involved means that were within the scope of Payne’s authority as a

principal. Appellees respond that the Policy eliminated the principal’s discretion.

A government employee, however, may enjoy the benefit of qualified immunity

even for ministerial actions so long as his or her actions meet the two-prong test.

See McCoy v. Webster, 47 F.3d 404, 407 (11th Cir. 1995) (per curiam). The

investigation and reporting of complaints (sexual harassment or otherwise) also



       1
          Appellees offer little resistance to the first prong of the test. See Brief of Appellee C.C.
et al. at 19 (“Here, even if Payne was performing a job related function, Payne cannot pass the
second step of the Hallowman inquiry.”).

                                                   7
falls within the perimeter of Payne’s job-related functions. In addition, the means

utilized – meeting with students and parents – were also within Payne’s authority

as principal, even if Payne did not do all that was required of him.

       Having determined that Payne acted within his discretionary authority,2 the

burden now shifts to the Appellees to demonstrate that Payne’s actions violated

clearly established constitutional law. See Harbert, 157 F.3d at 1281. The district

court, however, never reached this question and, thus, we have no record to

review.3 Accordingly, we remand this case to give the district court the first

opportunity to apply the qualified immunity test as provided in Saucier v. Katz,

533 U.S. 194, 201 (2001).

II.    State-agent immunity

       In Ex parte Cranman, 792 So. 2d 392 (Ala. 2000) (plurality opinion), the


       2
          The district court’s denial of qualified immunity based on Payne’s failure to comply
with the Policy appears to only implicate qualified immunity with respect to R.H.’s equal
protection claim insofar as Payne did not learn of C.C.’s allegations until much later. In other
words, the requirements of the Policy were never triggered as to C.C. until Payne learned of the
allegations made by C.C., at which point the Superintendent suspended the teacher and a
criminal investigation began, rendering moot Payne’s requirements under the Policy. The
district court, however, drew no distinction between its analysis as to the Appellees’ respective
claims. We therefore assume that the district court’s analysis applied to both Appellees’ claims
and, likewise, our analysis applies to the same.
       3
          In considering the Appellees’ Title IX cause of action, the district court concluded that,
“viewing the allegations in a light most favorable to plaintiffs, a jury could find that defendant
Payne was deliberately indifferent” to R.H.’s allegations of sexual abuse.” This conclusion
might reasonably be construed to to suggest that R.H.’s rights were clearly established, or at
least to imply such a conclusion. As noted above, however, it is not our place to make this
determination in the first instance.

                                                  8
Alabama Supreme Court restated the rule governing state-agent immunity,

providing, in pertinent part, that “[a] State agent shall be immune from civil

liability in his or her personal capacity when the conduct made the basis of the

claim against the agent is based upon the agent’s . . . exercising judgment in the

discharge of duties imposed by statute, rule, or regulation in . . . educating

students.” 792 So. 2d at 405 (emphasis in original).4 The court tempered the new

rule with the following exceptions: “[n]otwithstanding anything to the contrary in

the foregoing statement of the rule, a State agent shall not be immune from civil

liability in his or her personal capacity . . . when the State agent acts willfully,

maliciously, fraudulently, in bad faith, beyond his or her authority, or under a

mistaken interpretation of the law.” Id. (emphasis in original).

       In order to claim state-agent immunity, Payne bears the burden of

demonstrating that the Appellees’ claim for outrage arises from a function that

would entitle him to immunity. Giambrone v. Douglas, 874 So. 2d 1046, 1052

(Ala. 2003) (citations omitted). If he makes such a showing, the burden shifts to

the Appellees who must establish that Payne acted willfully, maliciously,

fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation

of law. Id. (citations omitted). The district court found that Payne was not entitled


       4
         The Alabama Supreme Court has adopted the test for determining state-agent immunity
as restated in Cranman. See Ex parte Butts, 775 So.2d 173 (Ala. 2000).

                                              9
to state-agent immunity, reasoning that “Payne’s acts were not discretionary

because the Board’s anti-harassment policy does not provide any leeway for

choice.” As such, it appears that the district court concluded that Payne acted

beyond his authority.5

       We find no error in the district court’s denial of state-agent immunity under

Alabama law. Cranman created an exception to the state-agent immunity test for

when a state actor acts beyond his or her authority. Cranman, 792 So. 2d at 405.

Under Alabama law, “[a] State agent acts beyond authority and is therefore not

immune when he or she ‘fails to discharge duties pursuant to detailed rules or

regulations, such as those stated on a checklist.’ ” Giambrone, 874 So. 2d at 1052

(quoting Butts, 775 So. 2d at 178). Here, the Policy imposed affirmative duties on

Payne to investigate complaints of sexual harassment and to submit a completed

investigation to the Superintendent or designee for review. The district court found

that Payne failed to do so. Under Alabama law, Payne acted beyond his authority

by failing to comply with the requirements of the Policy. See Ala. Dep’t of Corr. v.

Thompson, 855 So. 2d 1016, 1020-21 (Ala. 2003) (finding that a warden’s

violation of a regulation prohibiting vehicles on grounds of correctional facility by



       5
        While somewhat unclear as to the basis of its denial of state-agent immunity, the district
court appeared to rely on the recognized exception of acting beyond his or her authority in that it
quoted that language from Cranman and underlined the relevant passage.

                                                10
maintaining a contradictory unwritten procedure constituted action “beyond his

authority”); Bayles v. Marriott, 816 So. 2d 38, 41-42 (Ala. Civ. App. 2001)

(affirming state-agent immunity but noting that “[w]e might reach a different result

if, instead of the broadly stated, general safety policy, [the state agent] had instead

been responsible for following a detailed rule or checklist and had failed in this

responsibility”).6 As such, Payne is not entitled to state-agent immunity.7

                                       CONCLUSION

       In light of the foregoing, we REVERSE and REMAND the district court’s

decision as to qualified immunity with instructions to apply the test for qualified

immunity under Saucier and AFFIRM the district court’s decision as to state-

       6
         We note that, under federal law, we asked a different question in determining whether
Payne’s actions were outside the scope of his discretionary authority than we asked under
Alabama law in applying the exception to state-agent immunity of acting beyond his or her
authority. For qualified immunity, we asked (in the second prong) whether the nature of Payne’s
actions were outside his authority and whether he used means that were within his authority to
achieve an otherwise acceptable end? As noted above, Payne acted within his discretionary
authority. For state-agent immunity, however, we asked a slightly different question in applying
the “beyond his or her authority” exception: whether Payne’s actions actually proceeded beyond
his authority? Here, we do not consider only the nature of the actions that Payne took; rather, we
also consider Payne’s decision not to take further steps, specifically, his decision (1) not to
conduct any meaningful investigation of R.H.’s complaint and (2) not to notify the
superintendent of R.H.’s complaint. Because of the Policy, Payne lacked the authority to decide
not to take these actions. Therefore, while none of the actions Payne took were outside the scope
of his discretionary authority or by means that were not within his power to utilize for purposes
of qualified immunity, his decision not to act further and to curtail the investigation when he did
were not within his authority under state law.
       7
         Payne also relies upon a series of cases (pre-Cranman) involving school supervisors and
similar allegations to the ones sub judice. In addition to applying the discretionary function test
as opposed to the state-agent immunity test as set forth in Cranman, none of those cases allege
that the school supervisor failed to act in the face of a clear rule.

                                                11
agent immunity.

     REVERSED and REMANDED in part, and AFFIRMED in part.




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