341 F.3d 1261 | 11th Cir. | 2003
This case arose out of Jacksonville Fire Chief Rayfield Alfred’s decision not to ere-
BACKGROUND
On November 1, 1995, Chief Alfred, a black man, was appointed by Mayor John Delaney to his current position as the director and chief of the fire department in Jacksonville, Florida. Mayor Delaney recruited Chief Alfred from Washington, D.C., where he previously served as fire chief. Chief Alfred was appointed because the fire department had a history of racism and nepotism and Mayor Delaney wanted to bring someone in from outside of the department to ensure that the department would be run in a race-neutral manner. Significantly, there was no affirmative action plan in place.
As fire chief, Chief Alfred has the authority to create new positions and the responsibility to fill vacancies within the fire department. In so doing, however, he does not enjoy absolute discretion, because his authority to promote within the ranks of lieutenant, captain, and chief in the rescue division is limited to promoting from an eligibility list that is generated from a competitive written examination. Indeed, under the rescue division promotion system, which was- devised pursuant to the City’s contract with the Jacksonville Association of Firefighters, Local 122, an eligibility list is created from the certified results of a race-neutral examination that is administered solely for the purpose of determining who is eligible for promotion and the order in which those candidates will be promoted. To determine the order of promotion, eligible candidates are ranked according to their examination scores, and Chief Alfred must promote according to that order. In other words, when a vacancy opens or a new position is created, the next highest person on the eligibility list is promoted to that position.
In October of 1999, Thomas T. McCrone, the chief of the rescue division, approached Chief Alfred and proposed that he create four new captain positions in the rescue division, known as roving captain positions, and fill them from an eligibility list that was generated in 1997, but was set to expire in approximately nine days.
Subsequently, the plaintiffs filed this civil rights lawsuit
In response, the defendants moved to dismiss the discrimination claims, asserting in part that Chief Alfred was entitled to qualified immunity for the claims brought against him in his individual capacity. The district court disagreed, however, finding that the “plaintiffs have alleged facts sufficient to establish entitlement to relief based upon the violation of a clearly established constitutional or federal statutory right.” Williams v. Consol. City of Jacksonville, M.D. Fla.2000, — F.Supp.2d - (No. 00-00469-CV-J-12, Nov. 1, 2000) (denying in part the defendants’ motion to dismiss the plaintiffs’ amended complaint for failure to state a claim upon which relief could be granted and their motion to dismiss the claims brought against Chief Alfred in his individual capacity on qualified immunity grounds and granting dismissal of the plaintiffs’ § 1981 claim against the City), aff'd, 268 F.3d 1067 (11th Cir.2001) (unpublished table decision). We affirmed that decision on interlocutory appeal, finding that the plaintiffs stated their cause of action sufficiently. Williams, 268 F.3d at 1067. We noted, however, that “[fjurther proceedings will determine whether the Appellant is entitled to qualified immunity.” Id.
Thereafter, discovery commenced and the defendants moved for summary judgment, arguing, among other things,
STANDARD OF REVIEW
We review the district court’s denial of a motion for summary judgment based upon qualified immunity de novo, construing the facts “in the light most favorable to the
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, 73 L.Ed.2d 396 (1982)). In effect, qualified immunity “allow[s] government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law.” Id. (internal quotation marks omitted).
“To receive qualified immunity, the public official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Id. (internal quotation marks omitted). “If the defendant was not acting within his discretionary authority, he is ineligible for the benefit of qualified immunity.” Lee, 284 F.3d at 1194.
“Once the defendants establish that they were acting within their discretionary authority, the burden shifts to the plaintiff to demonstrate that qualified immunity is not appropriate.” Lumley v. City of Dade City, 327 F.3d 1186, 1194 (11th Cir.2003). We evaluate whether an official is entitled to qualified immunity, using a two-part analysis set forth by the United States Supreme Court. See Vin-
I. Constitutional Violation
We first must determine whether the allegations underlying the plaintiffs’ claims against Chief Alfred in his individual capacity establish a violation of the Equal Protection Clause of the Fourteenth Amendment.
Here, the plaintiffs allege that Chief Alfred was motivated solely by his desire not to promote four more white men under the 1997 eligibility list when he decided not to create the new positions. See Yeldell, 956 F.2d at 1065 (looking to the defendant’s underlying discriminatory motivá
II. Clearly Established Law
As the plaintiffs have established the violation of a constitutional right, our next question is whether, at the time that Chief Alfred made his discriminatory employment decision, the unlawfulness of his actions was “clearly established.” Vinyard, 311 F.3d at 1349. Indeed, Chief Alfred still “may ... be shielded from liability for civil damages if [his] actions did not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Hope, 536 U.S. at 739, 122 S.Ct. 2508 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. 2727). We undertake this determination “ ‘in light of the specific context of the case, not as a broad general proposition,’ ” Vinyard, 311 F.3d at 1349 (quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151), in an effort “‘to ensure that before [public officials] are subjected to suit, [they] are on notice their conduct is unlawful,’ ” Hope, 536 U.S. at 739, 122 S.Ct. 2508 (quoting Saucier, 533 U.S. at 206, 121 S.Ct. 2151). This does not mean, however, that “the very action in question has previously been held unlawful”; rather, it means only that the “un
Such fair warning or “fair and clear notice can be given in various ways.” Vinyard, 311 F.3d at 1350. In some rare cases, for instance, a violation may be so egregious that the Constitution or a statute on its face may be sufficient “to establish clearly the law applicable to particular conduct and circumstances and to overcome qualified immunity, even in the total absence of case law.” Id. (providing a detailed discussion of this “obvious clarity” situation). More frequently, however, we must turn to case law to make our determination. Id. at 1351. While “some broad statements of principle in case law are not tied to particularized facts and can clearly establish law applicable in the future to different sets of detailed facts,” more often, the facts are so material to the violation at issue that such generalized principles are insufficient, and we must look to precedent that is factually similar to the case at hand. Id.; see Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir.2003) (noting that we may look to “decisions of the Supreme Court, this court, or the highest court of the state in which the case arose” to determine if the law was clearly established). In this case, the Equal Protection Clause on its face was not enough to put Chief Alfred on notice that his actions were unlawful; therefore, we turn to case law to determine whether it was clearly established in 1999 that Chief Alfred’s actions were unconstitutional.
“[A] broad principle in case law is [sufficient] to establish clearly the law applicable to a specific set of facts facing a governmental official, [when] it ... do[es] so ‘with obvious clarity’ to the point that every objectively reasonable government official facing the circumstances would know that the official’s conduct did violate federal law when the official acted.” Vinyard, 311 F.3d at 1351. As discussed above, we previously recognized a broad “equal protection right to be free from intentional racial [and gender] discrimination.” Brown, 923 F.2d at 1478; see also Alexander, 207 F.3d at 1321; Yeldell, 956 F.2d at 1064. Although in some cases we have relied upon that broad equal protection principle to clearly establish the unlawfulness of intentionally discriminatory employment actions, see Bogle v. McClure, 332 F.3d 1347, 1361 (11th Cir.2003); Alexander, 207 F.3d at 1321,
In Yeldell, we denied qualified immunity to an elected black official, Commissioner Reuben Davis, with respect to claims brought against him for discriminatory personnel decisions. 956 F.2d at 1065. The alleged discriminatory actions at issue were (1) a claim by a white female who was dismissed from her position as temporary nursing supervisor for maternal/infant care when Commissioner Davis hired a less qualified black woman to fill the position permanently even though recruitment previously had been frozen for monetary reasons; (2) a claim by a white man who held a position as an independent contractor for three years, but was dismissed when Commissioner Davis declined to renegotiate his contract and instead created a permanent position for which he was unqualified so that he could offer the position to a black man; and (3) claims by three other employees who alleged that Commissioner Davis was motivated by racial factors when he made discriminatory hiring and firing decisions. Id. at 1064-65. After determining that from 1986 through 1989 the law was clearly established that demoting and firing employees and passing candidates up for existing job opportunities because of their race constituted “intentional race discrimination in the workplace,” we held that Commissioner Davis was not entitled to qualified immunity. Id.
In reaching our decision, we relied upon our binding precedent in Brown, in which we denied qualified immunity to a city manager and police chief who were accused of firing a black police officer on the basis of his race. See id. at 1064 (citing Brown, 923 F.2d at 1478). Specifically, we reasoned that the alleged “intentional race discrimination in the workplace” in Yeldell “was [no] less frowned upon by the laws of this society” than in Brown where “we held that ‘[i]t is beyond doubt that the principal right allegedly violated by the defendants — the equal protection right to be free from intentional racial discrimination — was clearly established at the time [the police chief] and [the city manager] fired [the police officer].’” Id. (quoting Brown, 923 F.2d at 1478) (second through fourth alterations in original); see also Smith v. Lomax, 45 F.3d 402, 407 (11th Cir.1995) (echoing our determination in Yeldell that in 1989 the law barring “intentional discrimination in the workplace” sufficiently put two black members of a board of county commissioners on notice that casting votes to replace a white female county clerk with a black female solely on account of race violated the Equal Protection Clause (internal quotation marks omitted)).
The plaintiffs argue that in addition to Yeldell two cases that were not decided in the qualified immunity context, Batey v. Stone, 24 F.3d 1330 (11th Cir.1994), and Dumas v. Town of Mount Vernon, 612 F.2d 974 (5th Cir.1980),
Similarly, in Dumas, the plaintiff, a black female, alleged that the county refused to hire her for an existing vacancy due to her race and then later delayed filling the position when it became vacant even though she was the only certified candidate on the personnel board’s employment register. See 612 F.2d at 976, 980. We reversed the district court’s dismissal for failure to state a claim upon which relief could be granted and held that in alleging “that all defendants maintain racially discriminatory hiring practices, that each of the defendants decided and acted, separately and severally, not to fill the vacancy in order to avoid hiring a black person and that the Personnel Board and Town officials conspired to deprive [the plaintiff] of equal protection,” the plaintiff sufficiently pled a race discrimination case under Title VII. Id. at 980.
In light of our precedent, we agree with the plaintiffs that it was clearly established in 1999 that it was unlawful for a public official to make a race- or gender-based decision concerning hiring, termination, promotion, or transfer to or from an existing position, see, e.g., Yeldell, 956 F.2d at 1064-65; Brown, 923 F.2d at 1478, to refuse to fill an existing position because of the race of an applicant, see Dumas, 612 F.2d at 980, or to reorganize existing positions to avoid promoting an employee because of her gender, see Batey, 24 F.3d at 1333; Yeldell, 956 F.2d at 1064-65. Yet, the employment action at issue in this case is distinctly different than those employment actions. Indeed, Chief Alfred did not make a decision concerning an existing or viable position. Instead, the decision at issue was whether to create four permanent high-level positions in the fire department as proposed by a subordinate official — a decision that involves the core structure of the fire department. As we find this distinction significant, we conclude that the above case law did not put Chief Alfred on notice that it was unconstitutional to make a decision not to create four new high-level positions as proposed by a subordinate official based solely upon the race or gender of the next eligible candidates.
Although we recognize that under Hope the exact unlawful action at issue need not have been resolved by previous case law, 536 U.S. at 739, 122 S.Ct. 2508, we find it significant that the actions at issue in this case took place in a markedly different context than the other cases, see Willingham v. Loughnan, 321 F.3d 1299, 1301 (11th Cir.2003) (noting that in most qualified immunity cases preexisting case law that is factually similar is necessary to give officials ‘“fair notice’ that the behavior violated a constitutional right”), petition for cert. filed, 71 U.S.L.W. 3737 (U.S. May 16, 2003) (No. 02-1694); see Vinyard, 311 F.3d at 1351-52 (“We believe that most judicial precedents are tied to particularized facts” such that factually similar case law is necessary to put public officials on notice of the unlawfulness of their actions.). Specifically, all of the cases discussed above dealt with typical employment decisions that were made concerning
CONCLUSION
Although the plaintiffs’ allegations establish that Chief Alfred violated the Equal Protection Clause, such a violation was not clearly established in 1999 when the unconstitutional act occurred. Under the unique facts of this case, we find that the general equal protection right to be free from employment discrimination did not provide Chief Alfred with fair and clear notice that his actions were unlawful. Furthermore, we were unable to find any case law that was similar enough to clearly establish that in 1999 it was a violation of the Equal Protection Clause for a public official to decline to create permanent positions as proposed by a subordinate official even when that decision was based upon the race or gender of the next eligible candidates. Thus, we hold that Chief Alfred is entitled to qualified immunity. Accordingly, we REVERSE and REMAND this case to the district court with instructions to enter summary judgment in favor of Chief Alfred as to the claims brought against him in his individual capacity.
. Sauls died on August 7, 2000, and his estate was substituted as a party in this action.
. Although this appeal was brought by the defendants as evinced by their Notice of Appeal, the appeal itself pertains only to the claims brought against Chief Alfred in his individual capacity. Thus, our holding applies only to those claims.
.For purposes of this appeal of the district court’s denial of qualified immunity to Chief Alfred on summary judgment, the facts are construed “in the light most favorable to the plaintiff[s],” Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.2002), and "may not be the ‘actual’ facts of the case,” Priester v. City of Riviera Beach, 208 F.3d 919, 925 n. 3 (11th Cir.2000).
. As the results of the examination were certified on October 14, 1997, the eligibility list was effective until October 14, 1999.
. Although they initially were ranked ninth (Williams), tenth (Perryman), eleventh (Sauls), and twelfth (Price), eight lieutenants already had been promoted to captain from the 1997 eligibility list; thus, the plaintiffs were the top four candidates on the list when Chief Alfred considered Chief McCrone’s proposal.
. The roving captain positions never were created, but, after the 1997 eligibility list expired, a number of new captain vacancies arose in the rescue division and each of the three surviving plaintiffs, during the years 2000 and 2001, was appointed to one of those vacancies on a provisional basis. In November of 2001, however, a new exam was given, and a new eligibility list was created; the surviving plaintiffs, who had elected not to retake the exam in 2001, lost their temporary status as captains when the vacancies were filled from the new eligibility list.
. One of the eight men was white-hispanic.
. Indeed, Chief Alfred’s underlying motivation, as understood by Chief McCrone, was articulated in a conversation that he had with Price, in which Chief McCrone told Price why the new positions would not be created. He explained, " T have done everything I can do. It’s out of my hands. Alfred said the next four people on the list do not reflect the diversity of the fire department.’ ” Price allegedly responded, " ‘So basically you’re not doing this because we're not black?,' " to which Chief McCrone answered, " 'Basically....' '[I]t's out of my hands.' ” Similarly, on at least two other occasions, Chief McCrone repeated to others in the fire department that Chief Alfred's decision not to create the positions was due to his desire to have a more diversified list. Chief Alfred denied making this statement, however, claiming that his motivation was fiscal and economic and that any diversity concerns merely arose from a desire to promote from a larger, potentially more diverse applicant pool, and Chief McCrone has since recanted his explanation of why Chief Alfred did not create the positions. Accordingly, the district court recognized in its July 3, 2002 order that disputed facts exist as to the motivation behind Chief Alfred’s decision not to create the roving captain positions. Nevertheless, as explained previously, for purposes of this interlocutory appeal, we accept the plaintiffs' version of the facts as true and need not determine the validity of the district court's evidentiary finding. See Lee, 284 F.3d at 1190.
.The complaint we refer to in this opinion is the plaintiffs’ Amended Complaint filed on July 21, 2000.
. The other arguments raised by the defendants in their motion for summary judgment are not before us on appeal; thus, we do not consider them herein.
. In this order, the district court also addressed the plaintiffs’ motion for partial summary judgment and found in favor the plaintiffs, dismissing the defendants’ ninth, tenth, eleventh, and thirteenth affirmative and special defenses. As this does not affect the outcome of this appeal, we do not address it further.
. As Chief Alfred’s appeal ultimately hinges upon our legal determination of whether he violated a clearly established constitutional right when he declined to create four new roving captain positions, we conclude that we have interlocutory jurisdiction to review the district court's denial of summary judgment on qualified immunity grounds. See Behrens v. Pelletier, 516 U.S. 299, 311, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (“[A]n order denying qualified immunity, to the extent it turns on an 'issue of law,’ is immediately appealable” (citation omitted).); Cottrell, 85 F.3d at 1485 (Interlocutory jurisdiction exists over the denial of a summary judgment motion based upon qualified immunity when "the denial is based even in part on a disputed issue of law.”). Moreover, Chief Alfred is not precluded from bringing this appeal interlocutor-ily by his previous interlocutory appeal of the district court's denial of qualified immunity on a motion to dismiss, see Cottrell, 85 F.3d at 1487 n. 4 (A defendant is entitled to raise a qualified immunity defense in both a motion to dismiss and a motion for summary judgment, and he may appeal an unfavorable outcome of both motions interlocutorily if questions of law exist.), and our decision in that case did not prevent him from raising a qualified immunity defense on summary judgment, because that opinion addressed only whether qualified immunity was appropriate on a motion to dismiss, see Williams, 268 F.3d at 1067 (providing that ”[f]urther proceedings will determine whether [Chief Alfred] is entitled to qualified immunity”). Accordingly, we have jurisdiction.
. On this record, it is undisputed that Chief Alfred was acting within his discretionary authority as the director and chief of the fire department when he made the employment decisions at issue. Plainly, he had the ultimate authority to create new positions and to fill vacancies in the department.
. The plaintiffs argue that "Chief Alfred’s conduct amounts to unlawful intentional discrimination in violation of the Constitution and Title VII.” Because we are concerned only with whether Chief Alfred is entitled to qualified immunity for the claims brought against him in his individual capacity, however, we limit our analysis to whether Chief Alfred's conduct violated the Equal Protection Clause. See Smith v. Lomax, 45 F.3d 402, 403 n. 4 (11th Cir.1995) ("The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act” (internal quotation marks omitted).).
. The Equal Protection Clause provides, in relevant part, that
[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const, amend. XIV, § 1.
. Clearly, Chief Alfred knew that by leaving things as they were and not creating the proposed positions, the 1997 eligibility list would expire on a fixed date and a new eligibility list, which might yield more diversity, would be generated through race-neutral means for future promotions. In that regard, he argues that our decision in Allen v. Alabama State Board of Education, 164 F.3d 1347, 1352-53 (11th Cir.1999), vacated on other grounds by 216 F.3d 1263 (11th Cir.2000), which he interprets as finding that race-conscious outreach efforts by government officials taken to broaden an applicant pool in a department with a history of racism were lawful if they ultimately disadvantaged no one, supports his actions in this case. Although it is apparent that Chief Alfred was faced with a dilemma, especially in light of the fire department's history of discrimination against minorities and women, we are limited at this stage to the facts as construed in the light most favorable to the plaintiffs. See Lee, 284 F.3d at 1190. As such, regardless of how well-intentioned Chief Alfred might have been, under Allen, his decision still was unlawful absent a valid affirmative action plan. See 164 F.3d at 1352-53 (The "strict scrutiny standard is plainly applicable where the government distributes burdens or benefits along racial lines, granting a preference or imposing a penalty to individuals because of their race.”); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 229-30, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) ("[W]henever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection.'').
. In reaching this conclusion, however, we are by no means suggesting that a public official must create new positions merely because a subordinate official expresses a need for the positions and the next eligible candidates are of a particular race or that an employee who is next in line for promotion is somehow entitled to a position before it is created. Instead, we simply are extending our precedent to include the alleged employment action in this case — a decision not to create new positions based solely upon the race and gender of the next eligible candidates.
. Although Alexander could not have put Chief Alfred on notice as it was decided in 2000, we look to it for guidance as it addressed whether the law pertaining to a variety of discriminatory actions taken by public officials was clearly established in 1992. See 207 F.3d at 1321 (relying upon our precedent to conclude that “there can be no doubt that in December 1992 ... it was clearly established that intentional discrimination in the workplace on account of race violated federal law”).
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
