UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30958
Summary Calendar
GREGORY JOHNSON,
Plaintiff-Appellee,
versus
LOUISIANA, STATE OF, Department
of Public Safety and Corrections,
Defendant
PAUL W. FONTENOT, Deputy Secretary,
Department of Public Safety and Corrections;
JOHN WATSON, Sergeant, Department of
Public Safety and Corrections; LINDA CLARK,
Motor Vehicle Officer; SHIRLEY ARMSTRONG,
Vehicle Officer; JEFFREY K. WATTS, Trooper,
Defendants-Appellants.
Appeal from the United States District Court
For the Eastern District of Louisiana
(95-CV-4079-C)
March 24, 1997
Before POLITZ, Chief Judge, KING and PARKER, Circuit Judges.
POLITZ, Chief Judge:*
Defendants Paul Fontenot, John Watson, Linda Clark, Shirley Armstrong,
and Jeffrey Watts appeal the district court’s refusal to grant their motion to dismiss
Gregory Johnson’s 42 U.S.C. § 1983 claim on the grounds of qualified immunity.
For the reasons assigned, we dismiss their appeal.
Johnson was employed by the Louisiana Department of Public Safety and
Corrections as a motor vehicle police officer from October 1989 to December
1994. Johnson alleges that on June 3, 1994 Sergeant Watson told him that he
intended to fondle Officer Linda Clark’s breasts. Later that day Johnson asked
Clark whether Watson had tried to touch her. Clark initially said that he had not,
but the next day Johnson claims that she said otherwise. Johnson urged Clark to
report the incident but she refused, not wishing to deal with the questions and
embarrassment associated with making such a report. Johnson claims that on
July 25, 1994 Officer Shirley Armstrong came into his office and, in the presence
of Officer Bertney Williams, corroborated Clark’s earlier admission and said that
Watson had attempted again to touch Clark’s breasts.
Johnson and several other officers complained to the Internal Affairs
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule
47.5.4.
2
Division of the Department about Watson’s inappropriate behavior towards Clark.
When questioned, Clark denied that Watson had tried to touch her breasts. Johnson
requested an investigation which concluded that his allegations were false.
Fontenot, Deputy Secretary of the Department, then ordered an investigation of
Johnson, appointing Watts to the task. After interviewing Clark, Armstrong,
Johnson, and Officer Theresa Gendusa, Watts concluded that Johnson had
fabricated the allegations of sexual harassment. Fontenot terminated Johnson’s
employment on December 9, 1994, doing so on the basis of Watts’ report. Johnson
complains that both investigations were faulty because there was no interview of
witnesses who would have supported his charges.
Johnson filed the instant action, invoking 42 U.S.C. §§ 1983 and 1988,
charging the defendants with violating his first and fourteenth amendment rights
by retaliating against him for speaking out on matters of public concern. The
district court partially granted defendants’ first motion, dismissing Johnson’s
claims against the state and the individual defendants in their official capacities.
The court refused, however, to dismiss the claims against the defendants in their
individual capacities. The defendants filed a second Rule 12(b)(6) motion to
dismiss, asserting qualified immunity. The district court denied that motion and
defendants timely appealed.
3
We must first determine whether we have jurisdiction to review the district
court’s denial of the defendants’ motion to dismiss which was based on their claim
of qualified immunity. We typically lack jurisdiction to review the denial of a
Rule 12(b)(6) motion because such an order is interlocutory. Under the Cohen1
collateral order doctrine, however, a district court’s decision is appealable if it:
(1) conclusively determines the disputed question, (2) resolves an important issue
that is separated completely from the merits of the case, and (3) effectively would
be unreviewable on appeal from a final judgment. In Mitchell v. Forsyth,2 the
Supreme Court carved out special treatment for appeal of the denial of a
defendant’s motion to dismiss on the ground of qualified immunity, stating:
An appellate court reviewing the denial of the defendant’s claim of
immunity need not consider the correctness of the plaintiff’s version
of the facts, nor even determine whether the plaintiff’s allegations
actually state a claim. All it need determine is a question of law:
whether the legal norms allegedly violated by the defendant were
clearly established at the time of the challenged actions . . . .3
In Johnson v. Jones, the Court clarified the Cohen doctrine within the context of
1
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). See also Johnson v.
Jones, 115 S.Ct. 2151 (1995); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139 (1993).
2
472 U.S. 511 (1985).
3
Id. at 528.
4
qualified immunity. Johnson concluded that the district court’s denial of summary
judgment in a qualified immunity case was not appealable when it determined only
a question of evidence sufficiency.4 The Court explained that when a defendant
challenges the district court’s determination that the evidence is sufficient to permit
a particular finding of fact after trial, the question is too similar to the fact-related
legal issues that underlie the plaintiff’s claim to satisfy Cohen’s separability
requirement.5 The Court also noted that an interlocutory appeal of this kind would
be an unwise use of judicial resources because the appellate court likely would face
the same or a very similar issue in a successive appeal.6
In the instant case, appellants assert that the district court’s order is
appealable because Johnson “failed to state a violation of a clearly established
statutory or constitutional right.” They claim that they are entitled to qualified
immunity “because it is not clearly established that a public employee may pursue
false allegations of sexual harassment and disrupt the work environment.”
Although purporting to challenge the district court’s order on a question of law,
appellants actually are disputing the court’s evidentiary evaluation.
4
Johnson at 2156.
5
Id.
6
Id. at 2158.
5
The district court found that Johnson alleged facts sufficient to establish a
claim under section 1983. Appellants’ attempt to characterize the appeal as one
based exclusively on the existence or nonexistence of a clearly established right,
as it must be to be appealable, is not persuasive. We have held that the first
amendment protects a public employee’s reports of sexual harassment, if found to
be made in good faith, because maintaining a police force free from the adverse
effects of sexual harassment is a matter of public concern.7 Johnson has alleged a
violation of a clearly established rule. We have before us an evidentiary dispute;
this appeal is, accordingly, DISMISSED.
7
Wilson v. UT Health Ctr., 973 F.2d 1263 (5th Cir. 1992), cert. denied, 507 S.Ct. 1004
(1993).
6