62 F. 3d 338 - Ratliff v. County Georgia

Defendants appeal1 the district court's denial of qualified immunity on Plaintiff Mary Linda Ratliff's equal protection claims.2 Ratliff cross appeals the district court's grant of summary judgment based on qualified immunity on her first amendment claims.3 Ratliff also requests this court to hold that the individual defendants are not entitled to qualified immunity against her claims for declaratory and injunctive relief.4

In reviewing the district court's denial of summary judgment, we--in most qualified-immunity interlocutory appeals--accept the facts which the district court assumed for the purposes of its decision about whether the applicable law was clearly established. See Johnson v. Jones, --- U.S. ----, ----, 115 S.Ct. 2151, 2159, 132 L.Ed.2d 238 (1995). Mary Linda Ratliff began work as a Public Service Officer in defendant DeKalb County's Bureau of Police Services in 1985. When she began in 1985, Ratliff was issued a "sworn police identification card" and police uniform, but the parties dispute whether Ratliff was ever a "sworn officer." Ratliff's duties were to supervise county school crossing guards. She never received sworn officer pay. In 1988, the Public Services unit moved from the Public Safety building to an alternative school building and combined with the Youth and Sex Crimes Unit commanded by Defendant Moss. Public Services was placed under the command of Defendant Cunningham, who reported, through a Lt. Rowell, to Moss.

Defendant Burgess was the Chief of Police at all times relevant to the issues in this case, except from April 1989 through December 1989, when Burgess served as Acting Director of Public Safety. Defendant King was commander of the Internal Affairs (I.A.) unit. King conducted I.A. investigations into allegations of unethical conduct complained of by Ratliff, and into complaints by a Colonel Farrar that Ratliff was untruthful and insubordinate. The I.A. investigation of Ratliff concluded that the charges against her were unfounded.

At the same time as the move to the new school building in 1988, Moss informed Ratliff that she was no sworn police officer, would have to give up her uniform and weapon, and would have to keep daily activity sheets. In 1990, Defendant Brown became the Director of Public Safety and gave Ratliff official written notice that she was not a sworn officer, could not wear the uniform or gun, and was not to take the county car home when school was not in session.

Ratliff filed suit in August 1991 under 42 U.S.C. Sec. 1983, alleging equal protection violations and violations of the First Amendment and due process clause. Ratliff is still employed by the county. Ratliff alleges that Defendants, all of whom were her supervisors or superiors in rank, violated her equal protection rights by discriminating against her on the basis of her sex and retaliating against her for her complaints of discrimination.

Defendants moved for summary judgment. The district court denied defendants qualified immunity for the equal protection claim; but in so doing, the court did not differentiate between Ratliff's equal protection claim for retaliation and her equal protection claim for gender discrimination.

Defendants argue that the district court erred in denying them qualified immunity on Ratliff's equal protection claim for retaliation. 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 responds that she does not allege an equal protection claim for retaliation, but says that such a right does exist in any event. In so arguing, Ratliff cites Cate v. Oldham, 707 F.2d 1176 (11th Cir.1983), Bridges v. Russell, 757 F.2d 1155 (11th Cir.1985), and Little v. North Miami, 805 F.2d 962 (11th Cir.1986). But, each of these cases holds that a constitutional claim for retaliation may be brought under 42 U.S.C. Sec. 1983 pursuant to the first amendment, not the equal protection clause. Because no established right exists under the equal protection clause to be free from retaliation, we reverse the district court's denial of qualified immunity on Ratliff's equal-protection retaliation claim. See generally Lassiter v. Alabama A & M University, 28 F.3d 1146 (11th Cir.1994).

Plaintiff's claim of gender discrimination presents us with a more complicated issue. In considering a motion for summary judgment based on qualified immunity, the Supreme Court has held that courts should pay no attention to the subjective intent of the government actor. See Harlow v. Fitzgerald, 457 U.S. 800, 815-18, 102 S.Ct. 2727, 2737-38, 73 L.Ed.2d 396 (1982). Harlow was intended to make a fundamental change in the law of immunity. And the strict meaning of the words used in Harlow for the immunity standard would protect public officials from personal liability when the pertinent substantive law makes the official's state of mind an essential element of the alleged constitutional violation.

Despite Harlow's words, we have said that in one kind of qualified immunity case--where discriminatory intent is an element of the tort--intent remains relevant.5 See Edwards v. Wallace Community College, 49 F.3d 1517, 1524 (11th Cir.1995). See also Nicholson v. Georgia Dep't of Human Resources, 918 F.2d 145, 147 (11th Cir.1990). We are bound by our earlier holding that, in qualified immunity cases, intent is a relevant inquiry if discriminatory intent is a specific element of the constitutional tort; and, we follow that rule here.

The district court determined that the evidence in the record would allow a finding of discrimination on the part of defendants and said that, as a legal matter, it was clearly established that the discrimination would violate federal law. Defendants say that nothing in the record here supports the notion that they, in fact, discriminated against plaintiff on account of her gender. Defendants may possibly be right; perhaps a full summary judgment should have been granted to one or more of them. We have stressed before to district courts that, given the ease of pleading cases of discrimination, plaintiffs seeking to avoid summary judgment should be strictly held to the requirements of Rule 56(e); the plaintiff must present specific nonconclusory facts that would support a jury verdict against the particular defendant on discriminatory intent. See Edwards, 49 F.3d at 1524.

But, we decline to review the denial of summary judgment on this ground, that is, that the district court in considering defendant's motions assumed erroneous facts or assumed facts which were unsupported by evidence in the record. This appeal is an interlocutory one. We mark the Supreme Court's decision and opinion in Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), which reminded us of the importance of the final judgment rule for appellate jurisdiction and which warned against easy resort to pendent jurisdiction. We question that we have the right in this case to exercise discretionary pendent jurisdiction over defendant's attack on the district court's fact-based decisions; but even if the law would allow it, we decline to exercise that jurisdiction.

Given the facts which the district court assumed for the purpose of ruling on defendants' motions, we--addressing the matter of qualified immunity only--affirm the denial of summary judgment for the individual defendants on the gender discrimination claim.

REVERSED IN PART, AFFIRMED IN PART and REMANDED.