UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1082
SHEREE A. CARTER,
Plaintiff, Appellee,
v.
STATE OF RHODE ISLAND, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
Cyr, Boudin and Lynch,
Circuit Judges.
James R. Lee, Assistant Attorney General, with whom Jeffrey B.
Pine, Attorney General, was on brief for appellants.
George Carvalho, with whom Patrick J. Quinlan and George E.
Babcock were on brief for appellee.
October 18, 1995
CYR, Circuit Judge. Appellee Sheree A. Carter, a state
CYR, Circuit Judge.
prison guard, filed suit against the State of Rhode Island, eight
of her supervisors or superior officers, and her union, alleging
race and gender discrimination. Four individual defendants,
among the eight individual defendants who initiated this inter-
locutory appeal, challenge a district court order disallowing
their "qualified immunity" defenses at summary judgment. We
dismiss their appeal, for lack of appellate jurisdiction.
I
I
BACKGROUND1
BACKGROUND
The Rhode Island Department of Corrections hired Carter
as a prison guard in October 1990. Her superior officers and
supervisors embarked on a prolonged campaign of workplace harass-
ment in April 1991. The work environment was marked by (i)
several disciplinary measures against Carter based on infractions
for which defendants had never disciplined white male guards,
(ii) especially undesirable or dangerous work assignments made
without regard to her seniority and class ranking, and failure to
accord "serious consideration" to her application for promotion,
(iii) repeated racial slurs and sexual threats anonymously
directed against Carter in telephone calls at work and at her
home, and in graffiti posted at or near her work station, (iv)
failure to address her repeated complaints about ongoing harass-
1The material facts are related in the light most favorable
to Carter, the party resisting summary judgment. See Hegarty v.
Somerset County, 53 F.3d 1367, 1368 n.1 (1st Cir. 1995).
2
ment, amounting to implicit condonation, and (v) defamatory
comments to the press relating to Carter's discrimination com-
plaints.
Carter commenced suit in federal district court in
August 1993, alleging, inter alia, that defendants violated 42
U.S.C. 1983 by infringing her constitutional right to be free
from race and gender discrimination under the Fifth and Four-
teenth Amendments to the United States Constitution.2 She
2Only the ruling denying summary judgment on the 1983
claims is before us on appeal. An amended complaint additionally
alleged civil rights claims under 42 U.S.C. 1981 (race-based
discrimination only) and 1985, pendent state-law claims under
the Rhode Island Whistleblower Protection Act, see R.I. Gen. Laws
28-14-18 (1994), and common law tort claims for defamation and
intentional infliction of emotional distress. Later, Carter was
allowed to amend the complaint again by including a Title VII
claim, see 42 U.S.C. 2000e-2(a)(1), to conform to the proffered
evidence. Defendants moved for summary judgment on all claims,
based on their qualified immunity defenses to the 1981, 1983
and 1985 claims.
The district court denied summary judgment to all eight
defendants on the Title VII claims, finding trialworthy issues of
material fact. See Carter v. State of Rhode Island, No. 93-
0447B, slip op. at 6-7, 18-20 (D.R.I. Nov. 9, 1994) (Report and
Recommendation). The court also dismissed the 1985 claims
against all eight defendants because Carter failed to adduce
sufficient evidence to generate a trialworthy issue as to the
existence of a "conspiracy." Id. at 15-17, n.47. Finally,
except for the defamation claim against "supervisory" defendant
Vose, the court denied all motions for summary judgment on the
state-law claims. Id. at 25-27.
Though not at issue in this interlocutory appeal, we note an
apparent inconsistency between the district court order and the
memorandum explaining its rationale; viz., there is no foundation
in the memorandum and order for the district court's decision to
dismiss the 1981 claims against the four "supervisory" defen-
dants. The court dismissed the 1981 claims against the "union"
defendants because Carter had adduced insufficient evidence that
the union intentionally or purposefully discriminated against
Carter by selectively invoking a union policy not to investigate
a union member's complaints while the complainant is receiving
workers' compensation. Id. at 11-13. On the other hand, there
is no discussion of the 1981 claims against appellants, who
3
sought injunctive relief, compensatory and punitive damages, and
attorney fees. Defendants moved for summary judgment, contending
that Carter had failed to state a claim upon which relief may be
granted, see Fed. R. Civ. P. 12(b)(6), (c), and asserting "quali-
fied immunity" from suit.
The district court categorized the eleven individual
defendants in three groups:
"Union" Defendants: Rhode Island Brotherhood
of Correctional Officers (Union); William
Bove (Union president); Kenneth Rivard (Union
grievance chairman);
"Supervisory" Defendants: George A. Vose, Jr.
(Director of Rhode Island Department of Cor-
rections); Captain Walter Whitman (Warden;
Carter's supervisor); Captain Thomas Par-
tridge (Deputy Warden; Carter's supervisor);
Barry Levin (the Department's Chief Supervi-
sor of Employee Relations); and
"Superior Officer" Defendants: Lieutenant
Ronald Le Clerc; Captain Kenneth Ahearn;
Captain Peter Germani and Captain Ronald
moved for summary judgment on the 1981 and 1983 claims on
qualified immunity grounds only, and whose 1981 liability is in
no sense derivative of, nor dependent upon, the union defendants.
Nevertheless, dismissal of the 1981 claims against the
"superior officer" defendants does appear to flow from the
dismissal of the 1983 claims against those defendants based on
insufficient evidence of discriminatory intent. On the other
hand, assuming the district court correctly denied summary
judgment to the four "supervisory" defendants on the 1983
claims, we discern no basis for dismissing the 1981 claims
against these "supervi-sory" defendants. Although qualified
immunity may be available under 1981, defendants normally are
denied the pretrial benefits of an immunity defense where, as
here, the court finds trialworthy issues pertaining to their
subjective state of mind, i.e., discriminatory intent. See
Alexis v. McDonald's Restaurants of Mass., Inc., F.3d ,
(1st Cir. 1995) [No. 94-1554, slip op. at 13, n.7 (1st Cir. Oct.
10, 1995)]. Accordingly, the parties should explore this appar-
ent inconsistency on remand.
4
Brodeur (Carter's superiors).3
The first district court ruling pertinent to the
present appeal dismissed the section 1983 claims against the
"superior officer" defendants because Carter's alleged right to
be free from undesirable or dangerous work assignments is not
protected under the Fourteenth Amendment, and the actions charged
against defendants could not support a reasonable inference of
discriminatory intent. Carter v. State of Rhode Island, No. 93-
0447B, slip op. at 23-24 (D.R.I. Nov. 9, 1994) (Report and
Recommendation). And, as to defendant Le Clerc, who allegedly
issued a public reprimand of Carter, the district court found
that the allegation that white male prison guards were not
subjected to similar reprimands did not provide an adequate
foundation for an inference that Le Clerc was motivated by race
or gender discrimination. Accordingly, the court dismissed the
section 1983 claims against the four "superior officer" defen-
dants.4
Second, the court ruled that Carter had stated action-
3After the motions for summary judgment were referred
pursuant to 28 U.S.C. 636(b)(1)(B), the district court adopted
the report and recommendation issued by a magistrate judge three
days prior to oral argument in this appeal. Accordingly, the
report and recommendation is cited throughout, as the district
court ruling.
4Although eight "superior officer" and "supervisory" defen-
dants are named in the notice of appeal, the order granting
partial summary judgment for the "superior officer" defendants is
not immediately appealable, as it has not been certified pursuant
to Fed. R. Civ. P. 54(b). See Hegarty, 53 F.3d at 1372; see
generally Kersey v. Dennison Mfg. Co., 3 F.3d 482, 486 (1st Cir.
1993).
5
able section 1983 claims against the four "supervisory" defen-
dants, by alleging that she caused copies of her complaints to be
sent to each thereby establishing that they knew about her
allegations of ongoing race and gender harassment and disparate
treatment thus demonstrating a trialworthy dispute as to their
intent in failing to redress her allegations. Id. at 23.
Finally, the district court ruled that the four "supervisory"
defendants were not entitled to qualified immunity from suit
because the right to be free from race and gender discrimination
by government officials had been "clearly established" long
before 1990. Id. at 24-25. Thus, only the four "supervisory"
defendants [hereinafter: "appellants"] presently challenge the
district court summary judgment ruling rejecting their "qualified
immunity" defenses. See supra notes 2 & 4.
II
II
DISCUSSION
DISCUSSION
A government official is not entitled to qualified
immunity from suit "if the right asserted by the plaintiff was
`clearly established' at the time of its alleged violation . . .
[and] a reasonable official situated in the same circumstances
should have understood that the challenged conduct violated that
established right." Burns v. Loranger, 907 F.2d 233, 235-36 (1st
Cir. 1990) (citing Mitchell v. Forsyth, 472 U.S. 511 (1988))
(emphasis added). The district court determined that "[t]he
constitutional right to be free from [] invidious discrimination
is so well established and so essential to the preservation of
6
our constitutional order that all public officials must be
charged with knowledge of it." Carter, No. 93-0447B, slip op. at
25 (D.R.I. Nov. 9, 1994).
Appellants contend in their opening brief that the
district court should have proceeded to consider whether, as a
matter of law, the particular conduct of each individual defen-
dant was objectively reasonable. They rely heavily on an analogy
to Harris v. Forklift Sys., Inc., 114 S. Ct. 367 (1993), a Title
VII case. Appellants argue that Harris prescribes minimum
evidentiary standards for establishing the "objectively abusive"
conduct needed to support a reasonable inference that a particu-
lar defendant harbored an invidious discriminatory intent. As
they see it, the facially innocuous or objectively reasonable
conduct in which appellants, as well as the "superior officer"
defendants, are alleged to have engaged (e.g., defendants "glanc-
[ed]" at Carter during roll call; refused to let her drive an
automobile without a license) falls far short of the "objectively
abusive conduct" required under Harris (viz., repeated use of
explicit gender-based insults, sexual innuendo, threats, and
coercion against a subordinate). This is demonstrated, appel-
lants say, by the district court ruling that the evidence is
insufficient to support a reasonable inference that the four
"superior officer" defendants harbored a discriminatory intent.
See Carter, No. 93-0447B, slip op. at 23-24 (D.R.I. Nov. 9,
1994); see also supra note 4. Appellants therefore insist that
they were entitled to qualified immunity because, viewing the
7
disputed evidence most favorably to Carter, reasonable officials
situated in their circumstances should not have understood that
their conduct violated Carter's established right to be free from
race or gender discrimination. See Burns, 907 F.2d at 235-36.
While this interlocutory appeal was pending, the United
States Supreme Court decided Johnson v. Jones, 115 S. Ct. 2151
(1995). Displacing our longstanding precedents allowing inter-
locutory appeals from virtually all rulings denying qualified
immunity defenses at summary judgment, see, e.g., Unwin v.
Campbell, 863 F.2d 124, 128 (1st Cir. 1988), the Supreme Court
held that
a defendant, entitled to invoke a qualified
immunity defense, may not appeal a district
court's summary judgment order insofar as
that order determines whether or not the
pretrial record sets forth a 'genuine' issue
of fact for trial.
Johnson, 115 S. Ct. at 2159. Recently, this court summarized the
Johnson message:
Thus, on the one hand, a district court's
pretrial rejection of a proffered qualified
immunity defense remains immediately appeal-
able as a collateral order to the extent that
it turns on a pure issue of law, notwith-
standing the absence of a final judgment. On
the other hand, a district court's pretrial
rejection of a qualified immunity defense is
not immediately appealable to the extent that
it turns on . . . an issue of fact . . . . In
such a situation, the movant must await the
entry of final judgment before appealing the
adverse ruling.
Stella v. Town of Tewksbury, F.3d , (1st Cir. 1995)
[No. 95-1223, 1995 U.S. App. LEXIS 23942, at *7-8 (1st Cir. Aug.
23, 1995)].
8
Johnson emphasized that routinely allocating fact-
intensive inquiries to appellate courts entails significant
delays and imprudent use of scarce judicial resources, since an
appellate court may have to wade through a huge, underdeveloped
pretrial record to resolve especially "nebulous" factual ques-
tions such as a defendant's "intent." Johnson, 115 S. Ct. at
2158 (emphasis added).
Appellants' first reaction to Johnson is to mis-
characterize the summary judgment ruling in this case as a "law-
based" rather than a "fact-based" denial of summary judg-
ment. Johnson explicitly directs that "a district court's
pretrial rejection of a qualified immunity defense is not immedi-
ately appealable to the extent that it turns on . . . an issue of
fact . . . ." Stella, F.3d at [No. 95-1223, 1995 U.S.
App. LEXIS 23942, at *7-8 (1st Cir. Aug. 23, 1995)] (citing
Johnson, 115 S. Ct. at 2159). Determining the presence or
absence of discriminatory "intent" based on evidentiary proffers
at summary judgment entails a quintessential factual assessment,
see Broderick v. Roache, 996 F.2d 1294 (1st Cir. 1993) (normally,
1983 defendants are not entitled to brevis disposition on
summary judgment where qualified immunity defense turns on
factual determination as to their subjective intent), which is
part and parcel of the "merits" dispute on the claims brought by
Carter in this case.
Second, appellants contend, citing Harris, 114 S. Ct.
367 (1993), that their conduct, as alleged, was not "objectively
9
abusive" as a matter of law since it was not sufficiently
egregious to support a reasonable inference that appellants were
motivated by race or gender discrimination:
[Such a standard] would permit any minority
[worker] to allege anything against a white
male [supervisor] and force that white male
to a jury trial. For example, a minority
could
allege a violation of the equal protection
clause because a white supervisor said hello,
one time, to a white worker before saying it
to the minority worker. That lawsuit would
obviously allege the violation of a clearly
established right [to be free from] racial
discrimination), but it would not allege
facts that violated that right.
Supplemental Brief for Appellants at 4. Given the evidence
adduced by Carter at summary judgment, see Fed. R. Civ. P. 56(e),
we reject this artificial characterization as well.
For summary judgment purposes, all evidence in genuine
dispute must be viewed in the light most favorable to Carter.
The district court found that Carter adduced evidence that (i)
each appellant had been given written notice of a pervasive,
continuing campaign of workplace harassment and disparate treat-
ment aimed at her, see supra pp. 2-3, (ii) each appellant had
authority to redress her complaints, and (iii) all failed to do
so. In this factual setting, Harris does appellants no good,
even as an analog.5
For one thing, contrary to appellants' contention, see
supra pp. 6-7, the Harris Court not only did not purport to
5We need not test the assumption implicit in appellants'
analogy; viz., that Harris, a sexual harassment case, defines the
boundaries of racial harassment claims as well.
10
prescribe an evidentiary threshold for establishing "objectively
abusive conduct," it explicitly noted that merely because an
earlier decision "present[ed] some especially egregious examples
of harassment, [it did] not mark the [lower] boundary of what is
actionable." Harris, 114 S. Ct at 371. Moreover, the Court
noted that
whether an environment is "hostile" or "abu-
sive" can be determined only by looking at
all the circumstances. These may include the
frequency of the discriminatory conduct; its
severity; whether it is physically threaten-
ing or humiliating, or a mere offensive ut-
terance; and whether it unreasonably inter-
feres with an employee's work performance. .
. . [N]o single factor is required.
Id. (emphasis added). The factual allegations attested to by
Carter, relating to conduct and context, are presumed true at
this stage in the case, see supra pp. 2-3, and must be evaluated
by the ultimate factfinder with a view to their adequacy as
support for a reasonable inference on the "nebulous" element of
discriminatory "intent." Thus, her factual allegations call for
precisely the type of fact-intensive inquiry that Johnson coun-
sels against, as an inappropriate judicial exercise on interlocu-
tory review.
Furthermore, the "conduct" we must deem established for
summary judgment purposes in this case cannot be confined to the
straitjacket designed for it by appellants (viz., "a white super-
visor said hello, one time, to a white worker before saying it to
the minority worker"). Rather, their hypothetical substantially
understates the allegations actually attested to by Carter.
11
Consequently, we need not address their artificial construct.
Carter expressly attests, for example, that repeated
racial and gender-based epithets were directed against her, and
that appellants condoned this harassment by their knowing inac-
tion. We can discern no permissible ground for treating the
district court ruling that there was a trialworthy issue of
fact as to whether appellants harbored a discriminatory intent
as an immediately appealable law-based decision within the
meaning of Johnson, 115 S. Ct. at 2159.6
Johnson announces a jurisdictional rule signaling a
new day in the First Circuit, see Stella, F.3d at [No. 95-
1223, 1995 U.S. App. LEXIS 23942, at *9 (1st Cir. Aug. 23, 1995)]
and not one to be undone by recasting fact-based rulings
denying summary judgment on qualified immunity defenses into law-
based "collateral orders" immediately appealable under Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). See Elliott
v. Thomas, 937 F.2d 338, 341 (7th Cir. 1991) ("By sleight of hand
[defendants] can turn any defense on the merits into a defense of
qualified immunity."), cert. denied, 502 U.S. 1121 (1992). The
Johnson rule would be undermined its important aims frustrat-
ed, see, e.g., Johnson, 115 S. Ct. at 2158 (noting, inter alia,
"danger of denying justice by delay") were defendant offi-
6Likewise, the district court's ruling -- that there is a
trialworthy issue of fact as to the existence of an "affirmative
link" between appellants' acts or omissions and the alleged
deprivation of civil rights, see, e.g., Figueroa v. Aponte-Roque,
864 F.2d 947, 953 (1st Cir. 1989) is not an immediately
appealable law-based decision. Johnson, 115 S. Ct. at 2159.
12
cials, spurred by the prospect of delay and the leverage it
occasions, permitted to contrive insubstantial "issues of law" as
grounds for interlocutory review.
III
III
CONCLUSION
CONCLUSION
As Johnson precludes interlocutory review of the
district court order denying summary judgment on appellants'
qualified immunity defenses, founded on the fact-based ruling
that there was a trialworthy issue of fact as to whether appel-
lants acted with discriminatory intent, their appeal is dismissed
for lack of appellate jurisdiction, with costs to appellee.
SO ORDERED.
SO ORDERED.
13