Howard LOCKRIDGE, Appellee,
v.
BOARD OF TRUSTEES, OF THE UNIVERSITY OF ARKANSAS, a Public Body Corporate; Dr. B. Allan Sugg, in his official capacity as President of the University of Arkansas; Dr. Steven Jones, Chancellor, Phillips Community College of the University of Arkansas, Appellants.
State of Missouri; State of South Dakota, Amici on Behalf of Appellants.
No. 01-1472.
United States Court of Appeals, Eighth Circuit.
Submitted: October 9, 2002.
Filed: January 14, 2003.
COPYRIGHT MATERIAL OMITTED Rhonda M. Thornton, argued, Little Rock, Arkansas, for appellant.
Melissa S. Woods, argued, New York, New York (John W. Walker, Shawn G. Childs, and Robert Pressman, on the brief), for appellee.
Before HANSEN, Chief Judge, and HEANEY, McMILLIAN, BOWMAN, WOLLMAN, LOKEN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY, and SMITH, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Howard Lockridge brought race and sex discrimination claims under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e through 2000e-17), 42 U.S.C. § 1981, and 42 U.S.C. § 1983 based on the denial of equal protection, against the University of Arkansas's board of trustees, the university president in his official capacity, and the chancellor of Phillips Community College of the University of Arkansas (PCCUA), Dr. Steven Jones, in his official and individual capacities. (Because we have held that a claim alleging a violation of § 1981 may not be brought directly against a state actor, but must be brought under § 1983, see Artis v. Francis Howell North Band Booster Ass'n,
Mr. Lockridge, who is black, alleged in his complaint that he was denied a promotion from his position as chair of the department of industrial technology to the position of dean of industrial technology and workforce development at PCCUA on account of his race and sex. The court granted summary judgment to all of the defendants with respect to Mr. Lockridge's sex discrimination claims, and held that neither Dr. Jones nor the university president could be individually liable under Title VII. The court ruled with respect to the remaining race discrimination claims that the defendants were not entitled to judgment as a matter of law on the merits and that Dr. Jones was not entitled to qualified immunity.
On appeal, Dr. Jones contends that he is entitled to qualified immunity because Mr. Lockridge did not apply for the promotion and told his supervisor that he was not going to apply. The other defendants argue that the claims against them may also be resolved in this appeal because the qualified immunity issue is intertwined with the merits of Mr. Lockridge's failure-to-promote claims against all of the defendants. In response, Mr. Lockridge argues that we do not have jurisdiction over the appeal. He also contends that he may prevail despite not having applied for the position because employees had previously been promoted to dean without filing applications and past practices indicated that filing an application would have been futile, and that he would have applied if the application period had not been shorter than usual.
I.
Mr. Lockridge, as we have said, questions this court's jurisdiction over this interlocutory appeal, and we first address our jurisdiction over the denial of qualified immunity to Dr. Jones. Such a ruling is immediately appealable if it "resolve[s] a dispute concerning an `abstract issu[e] of law' relating to qualified immunity ... typically, the issue whether the federal right allegedly infringed was `clearly established'" Behrens v. Pelletier,
Here, Dr. Jones argues that the undisputed facts compel the conclusion that he did not violate Mr. Lockridge's clearly established federal rights. We conclude that we have jurisdiction over this "abstract issue of law." We conduct our review by accepting as true the facts that the district court specifically found were adequately supported, along with those facts that the district court "`likely assumed,'" see Behrens,
II.
The threshold question in a qualified immunity case is whether "[t]aken in the light most favorable to the party asserting the injury," the evidence shows that the defendant's conduct violated a federal right at all. See Saucier v. Katz,
The facts that were found supported by the district court as well as those it "likely assumed," see Behrens,
Mr. Lockridge testified at his deposition that he first learned that PCCUA was seeking applicants for the position on April 21, when he received a notice from Dr. Jones by electronic mail. This notice, which was sent to the entire PCCUA community, stated that at the recommendation of Linda Killion (Mr. Lockridge's supervisor) and others the division of business and technology, over which she was dean, was being restored to its dual components. The notice further stated that Ms. Killion was to become dean of the division of business and computer technology; that PCCUA was "currently advertising" for the dean of the other component, the division of industrial technology and workforce development; that copies of the job announcement had been posted on the campus; and that advertisements would run in statewide newspapers the following weekend.
Upon reading the notice, Mr. Lockridge became upset. He testified that in the past PCCUA had hired "all the other deans positions" and "most of the executive staff" from within the college community without advertising in outside publications; "very seldom" in PCCUA's history, he said, did it "go outside" to fill positions. He contended that this changed when he was the logical choice for the position within the PCCUA community, and that he should have been offered the position before outside applicants were sought. The day after he received the electronic mail, Mr. Lockridge went to Ms. Killion and asked her why she had not recommended him for the position. Ms. Killion did not respond to the question directly but asked him if he was going to apply for the job, and he said that he was not. According to Dr. Jones, Ms. Killion notified him that Mr. Lockridge stated that he was not going to apply.
Mr. Lockridge further testified that at some point after his conversation with Ms. Killion, he decided to apply for the job. He began preparing an application but did not notify anyone of his change of heart. In the meantime, the search committee recommended Tracy McGraw, a white male who was not a PCCUA employee, for the position, and Dr. Jones decided to hire him. On May 5, Dr. Jones told Mr. Lockridge that he was going to hire Mr. McGraw. At the time that he learned that the decision had been made, Mr. Lockridge had not applied, and he had thought that he still had time to do so because PCCUA usually took at least four weeks to fill a position.
In its order denying summary judgment in part, the district court found that fact questions remained regarding the "policy and practice followed at PCC[UA] as to promotions" and "whether certain positions" such as the department chair for which [Ms. Killion] (a white female) was selected "were announced as vacancies"; whether internal searches were conducted first before positions were advertised; whether everyone was required to apply for promotions; and what time period was usually allowed for applying for a position. The court denied Dr. Jones qualified immunity because "the fact questions surrounding the actual policy and practices regarding promotions and whether applications were always required" prevented it from determining whether he "violated a clearly established right in selecting a search committee."
We first determine whether Mr. Lockridge established a violation of a federal right at all. See Saucier,
We believe that Dr. Jones was entitled to qualified immunity because the circumstances present here cannot support a finding that Mr. Lockridge was intentionally discriminated against when he was denied the promotion. Where, as here, there is no direct evidence of discrimination, the McDonnell Douglas burden-shifting analysis is applied to employment discrimination claims based on § 1981, see Bogren v. Minnesota,
As Mr. Lockridge points out, however, the requirements for establishing a prima facie discrimination case are flexible and may vary according to the case. See McDonnell Douglas,
Although the district court found that factual questions were raised as to PCCUA's promotion procedures generally, and Mr. Lockridge testified that PCCUA had always chosen deans from within the college community, we do not believe that this circumstance is sufficient to establish a prima facie case of racial discrimination. Here, Mr. Lockridge acknowledged that two of the six deans at PCCUA were black, and that at least two other black individuals had previously held the position of dean. Based on Mr. Lockridge's testimony, these individuals became deans without consideration being given to outside applicants. More importantly, vacancies in many positions at universities (and most other places) are necessarily filled in different ways, depending on the nature of a position and its responsibilities, internal circumstances, and the exigencies of the moment. We do not believe that a reasonable fact-finder could infer intentional race discrimination from the decision to consider outside applicants when seeking a qualified individual for the position involved in this case, particularly where each member of the college community was individually notified of the opening.
Mr. Lockridge also argues that he comes within the rule that excuses a failure to make an application when an employer consistently enforces a policy of discrimination, thereby making it apparent that applying for the position would be futile. See Int'l Bhd. of Teamsters v. United States,
As the original panel in this case noted, Teamsters was a class action, and the analysis used there is usually applied in other class actions, rather than to actions brought by individual plaintiffs. See Celestine v. Petroleos de Venezuella SA,
Mr. Lockridge draws our attention to the fact that he had applied for promotions a number of times before and had been rejected. In three of those instances, he asserts, twice in 1988 and once in 1992, a less qualified white person was appointed to the position. It might well be that Mr. Lockridge would have been able to make out a prima facie case of race discrimination in these prior instances, and it might be that an employee's proven experience with an employer could, in a proper case, furnish a reason for relaxing the requirement that an employee must apply for a position in order to make out a prima facie case that he was unlawfully discriminated against. But here, Mr. Lockridge seeks to rely on incidents some of which occurred at least a decade before the relevant employment decision, not all of which, moreover, included the same principal actors. In these particular circumstances, we are unable to conclude that Mr. Lockridge has made out a case on the question of whether it was futile for him to apply.
We have observed that plaintiffs in discrimination actions have been excused from applying for promotions if the "job opening was not officially posted or advertised and either ... the plaintiff had no knowledge of the job from other sources until it was filled, or ... the employer was aware of the plaintiff's interest in the job notwithstanding the plaintiff's failure to make a formal application." Chambers v. Wynne School Dist.,
We have also stated that an employee who does not formally apply must make "`every reasonable attempt to convey his [or her] interest in the job to the employer'" before he or she may prevail on a discrimination claim. See Chambers,
In addition, Mr. Lockridge asserts that the time between the date of the announcement of the opening and the date of hiring was shortened here because of his race, so that he was denied the opportunity to apply. Although in this appeal we accept as true Mr. Lockridge's testimony that the time period for applying was shorter than usual, we do not believe that this fact can raise an inference in a reasonable mind of racial animus.
Mr. Lockridge asks us to take into account the fact that he made the statement to Ms. Killion that he was not going to apply in anger. First, we note that there is no evidence that Dr. Jones knew that Mr. Lockridge was angry (or that he knew anything about this conversation other than that Mr. Lockridge said he was not going to apply), and the defendant's lack of knowledge sometimes may affect whether qualified immunity is available, see Foster v. Basham,
We conclude that based on the facts that the district court found supported and those that it "likely assumed," Mr. Lockridge cannot establish that his federal rights were violated at all when he was not promoted to the position of dean of industrial technology and workforce development. Because a violation of Mr. Lockridge's federal right to be free from race discrimination was not established, we need not determine the degree to which Dr. Jones was personally involved in the hiring process to conclude that he is entitled to qualified immunity. Where no federal right was violated, we also need not consider whether the right allegedly violated was "clearly established."
III.
The other defendants contend that we also have jurisdiction to decide Mr. Lockridge's discrimination claims against them because those claims are intertwined with our decision regarding qualified immunity for Dr. Jones. Usually our "jurisdiction on interlocutory appeal is limited to the resolution of the issue of qualified immunity," and "[w]e may not consider summary judgment on the merits of the case at this interlocutory stage." Mettler v. Whitledge,
We believe that this case presents an exceptional circumstance in which we have jurisdiction over issues that are "inextricably intertwined" with those appealable at the interlocutory stage. An issue is "inextricably intertwined" with properly presented issues only "`when the appellate resolution of the collateral appeal necessarily resolves the pendent claims as well.'" Kincade v. City of Blue Springs,
Accordingly, we reverse the district court's order insofar as it denied Dr. Jones qualified immunity and denied all of the defendants' summary judgment on the merits, and we remand to the district court for entry of judgment in favor of the defendants on all claims.
HEANEY, Circuit Judge, with whom McMILLIAN, MURPHY, and SMITH, Circuit Judges, join, dissenting.
I respectfully dissent. Lockridge has presented evidence sufficient to raise a genuine issue of material fact on his race discrimination claim. I would therefore affirm the district court's denial of appellants' summary judgment motion. The promotion policy at PCCUA, largely supervised by Jones, is ambiguous and potentially discriminatory, and Lockridge deserves a jury trial.
Under the circumstances, Lockridge need not have formally applied for the vacant deanship to have established a prima facie case of racial discrimination. An employee's failure to apply for a position pursuant to established procedures will normally bar his claim. However, the failure to apply is excused where the employer has no formal application process, where the employee is unaware of the opportunity, see Kehoe v. Anheuser-Busch, Inc.,
Another circumstance in which courts need not consider the application requirement is where the employer has failed to establish a clear personnel procedure for promotions. This is direct evidence of discrimination, and the McDonnell Douglas analysis is inapplicable to the matter. Trans World Airlines, Inc. v. Thurston,
In the case before us, the record shows that PCCUA utilized several different procedures for hiring and promotions. It is unclear under what circumstances Jones elected to use each procedure. Lockridge's attempts at promotion at PCCUA demonstrate the seemingly random and subjective promotions process. For example, in 1988, Lockridge "formally applied" for the position of Director of Continuing Education Jones responded to this application by telling Lockridge he would contact him when PCCUA decided to fill the position. In 1992, PCCUA hired Deborah King, a white woman, as Director of Continuing Education. Lockridge alleges that the position was never officially advertised or posted.
In 1988, the college hired Jack McCommon, a white man, as Associate Dean of Technical and Industrial Programs. Lockridge alleges this position was not posted, and that the person hired was not as qualified as he. At the time, Lockridge had two technical graduate degrees and twelve years of teaching experience. In 1993, Lockridge applied for the same position again and was not interviewed for the job because he lacked the "requisite vision." Although Steven Murray, Academic Dean of Instruction at the time, stated that the college's hiring policy was to conduct an internal search for qualified applicants before advertising outside the college, the record does not show whether PCCUA carried out an internal search. Ultimately, John Little, a white male, was recommended for the position, and Jones approved this recommendation.
In 1995, Jones decided to merge the Division of Technical and Industrial Education, where Little was Associate Dean, and the Division of Business and Data Processing, where Linda Killion was Associate Dean, to form the Division of Business and Technology. After having fired Little, Jones eliminated that deanship, and Killion became the Dean of Business and Technology. The record shows that Killion did not file an application for this position or at least two others that she held at the college: department chair and Associate Dean of Business & Data Processing.
Three years later, in 1998, Jones restored the "original dual components" of the divisions described above. Killion was to lead the Division of Business and Computer Technology, and the college was to commence a search for a person to lead the Division of Industrial Technology and Workforce Development. On April 21, 1998, Jones sent an e-mail to the faculty announcing his decision. On April 22, Lockridge asked Killion why she did not recommend him for the open position when she knew he was qualified for the job and when the college policy was to look for qualified internal applicants first before conducting an external search. On May 5, 1998, a mere two weeks after Lockridge was informed of the vacancy, Lockridge discovered that Tracy McGraw, a white man, had been hired for the deanship based on the search committee's recommendation.
Appellants insist that the hiring process in this instance could not have been more explicit: the administration posted the vacant position announcement on campus, advertised it in state and local newspapers, and e-mailed the announcement to the entire campus community, and Lockridge's supervisor asked whether he was going to apply for the position. It was not, they assert, a "vague and secretive" process. Nevertheless, the college fails to show what its procedure for hiring and promotions actually is. The record indicates that Jones has the discretion to determine whether a search committee or the appointment process for a vacant position will be utilized.1 He also has the ultimate authority in hiring decisions.
In support of the appellants' position, the majority asserts that university administrators need significant discretion in filling vacancies, and that to expect an institution to have a clear promotions policy would frustrate the hiring process. This line of reasoning only serves to enforce a potentially discriminatory practice of hiring and promotions at PCCUA. Lockridge has unsuccessfully sought a promotion to a deanship since 1988. His failure to submit an application for the most recently posted vacancy cannot be considered in isolation, as the majority suggests, nor is it fatal to his claim. Lockridge was given the opportunity to apply, but not the opportunity to be hired from within, free from outside competition, which was an advantage that his supervisors and other similarly qualified colleagues have enjoyed throughout their tenure at PCCUA. Furthermore, there is sufficient evidence to allow a jury to conclude that the practice of hiring new deans from within the PCCUA community changed once Lockridge was the obvious next choice for an internal promotion.
There is no doubt in my mind that Lockridge has presented sufficient questions of fact regarding the arbitrary manner in which Jones hired and promoted faculty members. The evidence in the record fails to clarify which positions were announced as vacancies at the college, whether everyone was required to make application for promotions, and what the usual time frame was between the announcement of a vacancy and the deadline for the submission of an application. A reasonable jury could conclude that the subjective manner in which the administration conducted these matters is direct evidence of discriminatory practices, triggering an entirely different analysis than what appellants have presented to this court. See Trans World Airlines, Inc. v. Thurston,
Regarding Jones's qualified immunity claim, the district court correctly held that Jones's alleged intent to discriminate against Lockridge on the basis of his race, if proved, would not be an act in good faith as required by Arkansas's indemnification law. The court also noted that the ambiguity surrounding the policy and practices regarding promotions at the college precluded Jones's qualified immunity defense. I believe we should affirm this matter as well.
The determination of whether a state actor is entitled to protection of qualified immunity is a two-step process. Saucier v. Katz,
The next inquiry is whether the right was clearly established. Washington,
Section 1983 provides individuals with a civil remedy for the violation of constitutional rights. To establish a § 1983 violation, the plaintiff must show 1) that a person has deprived him of a federal constitutional or statutory right; and 2) that the person acted under color of state law when it deprived the plaintiff of the federal right. Gomez v. Toledo,
If Jones, as a public official, intentionally discriminated against Lockridge on the basis of his race, he violated clearly established law set forth in 42 U.S.C. §§ 1981 and 1983, Title VII, and the Fourteenth Amendment. Therefore, I would affirm the district court's determination that Jones is not immune to suit in his individual capacity in this matter.
For the reasons cited above, I would affirm the district court's decision in all respects.
Notes:
Notes
In deposition, Jones provided the following responses to questions regarding the promotions policy at PCCUA:
Q. [Have you given notice] to the faculty of how vacancies for promotions will be determined? Are there any writings?
A. There's a college policy that discusses the general protocols for filling new positions... we have to adhere to state regulations on advertisings [sic] and postings and those sorts of issues.
* * * * * *
Q. Now if you choose to, decide to promote someone you have that power don't you?
A. If a recommendation is made to me for a promotion consideration, I ultimately do make the hiring decision, yes.
Q. And sometimes you make the judgment of whether or not you're going to promote somebody or create or restructure a section of the department in order to determine some other way for filling a vacancy?
A. Yes, sir; that is my responsibility as CEO.
(Deposition of Dr. Steven W. Jones at 7-8).
Q. So that it is fair to say, isn't it doctor, that you had a policy of promoting from within?
A. No sir; it's not.
Q. Well, at least you had a policy of promoting people to the position of dean from within did you not?
A. That might be a fair assessment.
(Id. at 22.)
Q. Who was in line had you followed a promotion from within policy? Who was in line to get that other associate dean position based on your staff at that time?
A. Mr. Walker, I don't have a promotion from within policy.
Q. To associate dean you said you did.
A. I don't have a policy; no, sir.
Q. The practice then. According to your practice who would have been next in line to get that position?
A. Promotions from within have been a practice on occasions, on other occasions they have not been Mr. Walker.
(Id. at 117).