Auriemma v. Rice

FLAUM, Circuit Judge,

with whom BAUER, Chief Judge, CUDAHY, and KANNE, Circuit Judges, join, dissenting.

I respectfully dissent from the majority’s decision because I believe it is contrary to the Supreme Court’s statement that “bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery.” Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 2737-38, 73 L.Ed.2d 396 (1982). As the majority correctly notes, this Court is not divided on the law of qualified immunity, but rather on its application when the defendant government official’s state of mind is at issue. Specifically, I differ on whether the court should consider the alleged underlying state of mind to determine if there is a clearly established right. The majority injects intent into this analysis, while I believe intent should not be considered in objectively defining the relevant body of law. See Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (qualified immunity to be applied objectively); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (objective qualified immunity analysis proper for summary judgment); Polenz v. Parrott, 883 F.2d 551, 553-54 (7th Cir.1989) (“Supreme Court eliminated the subjective good faith element from the qualified immunity analysis”); Cleveland-Perdue v. Brutsche, 881 F.2d 427 (7th Cir.1989) (qualified immunity analysis entails a purely objective inquiry), petition for cert. filed, 58 U.S.L.W. 3491 (U.S. Jan. 24, 1990); Wade v. Hegner, 804 F.2d 67 (7th Cir.1986) (intent not relevant to whether constitutional standards clearly established). For the reasons discussed below, I respectfully dissent as to Counts III, race discrimination, and V, retaliation. I concur with the majority’s opinion on Count IV, conspiracy.

*1464I.

My first disagreement concerns the majority’s denial of qualified immunity on Count III, the race discrimination claim. Although the majority correctly notes Harlow’s, directive that an objective analysis, one eliminating subjective intent, must be applied in determining whether the constitutional violation was clearly established, it overlooks the ruling in its application of the law to this case. The Harlow Court stated that it “was instituting a new regime of ‘reliance on the objective reasonableness of an official’s conduct’ ... and that it was generally eliminating ‘[jjudicial inquiry into subjective motivation.’ ” Halperin v. Kissinger, 807 F.2d 180, 185 (D.C.Cir.1986) (Scalia, J.) (quoting Harlow, 457 U.S. at 817, 102 S.Ct. at 2737). The Court later confirmed that Harlow “purged qualified immunity doctrine of its subjective components.” Halperin, 807 F.2d at 185 (quoting Mitchell v. Forsyth, 472 U.S. 511, 517, 105 S.Ct. 2806, 2810, 86 L.Ed.2d 411 (1985)). I fail to see how the majority’s application takes these concerns into account.

My approach differs from that of the majority because I believe the right should be defined without considering intent. As the Supreme Court held in Anderson, 483 U.S. at 641, 107 S.Ct. at 3039, inquiry into an official’s subjective intent is not part of the Harlow qualified immunity analysis. The majority’s characterization of the right at issue incorporates the plaintiffs’ bare allegations of malice and thus sacrifices the “the ‘objective legal reasonableness’ that is the touchstone of Harlow.” Anderson, 483 U.S. at 639, 107 S.Ct. at 3038. The majority’s approach transform's qualified immunity into a simple rule of pleading, something the Supreme Court has warned against. Id. at 639, 107 S.Ct. at 3038. The right at issue, however, must be defined “in relation to the specific facts confronting the public official when he acted,” Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir.1988) (en banc) (quoting Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir.1987)), not his underlying state of mind. Accordingly, “under Harlow, an objective immunity analysis at the summary judgment stage prior to discovery does not include an evaluation of intent.” Rakovich, 850 F.2d at 1210.

To appropriately define the right in these terms, intent must be removed from the analysis. Therefore, I conclude the correct portrayal of the specific right alleged to have been violated involving race is whether a reasonable superintendent of police could have concluded that he could take race into consideration for a limited reorganization of the exempt ranks of the police department. This characterization of the right is more objective than that of the majority, as is required by Anderson. Accordingly, the court must consider all the law that the objective facts of the case support to determine whether the right is clearly established. In this context, an objective approach does not preclude a consideration of the state of affirmative action law merely because Rice may have lacked the subjective intent to implement an affirmative action plan.

The majority, in an attempt to demonstrate why the court should not consider affirmative action law, brings Rice’s subjective intent into the analysis. Neither Harlow nor this Court’s decision in Cygnar v. City of Chicago, 865 F.2d 827 (7th Cir.1989), supports the majority’s approach. In Cygnar, this Court found that a City of Chicago department head charged with race discrimination for promoting blacks and demoting whites in a one-time reorganization was entitled to qualified immunity based on the state of affirmative action law, even though he denied using race as a factor in his decisions. In that decision, we found that the defendant’s intent was not at issue, but rather the question was whether the law put him on notice that his actions violated clearly established constitutional rights. We concluded that only by defining the right at issue in an objective manner, through the elimination of intent, can such notice be achieved. The majority attempts to distinguish Cygnar on the ground that the district court in that case found the defendant was actually carrying out an affirmative action plan and cryptically testified to that effect, whereas in this case Rice strongly denies ever consid*1465ering race. This distinction, however, is not as significant as one would be led to believe. In addition, any minimal factual distinction between the cases is irrelevant under the objective qualified immunity analysis established in Harlow. Under that approach, the government official’s intent is not dispositive of the question of whether the law was clearly established at the time. See Anderson, 483 U.S. at 641, 107 S.Ct. at 3039 (Official’s “subjective beliefs about [the action] are irrelevant”).

By focusing the decision of this Court on whether Rice intended an affirmative action plan, the majority also is omitting Harlow’s announced purpose of early elimination of insubstantial claims at summary judgment. In Rakovich v. Wade, 850 F.2d 1180, 1210 (7th Cir.1988) (en banc), we stated that “under Harlow, an objective immunity analysis at the summary judgment stage prior to discovery does not include an evaluation of intent. This is because evaluating intent would be a factual analysis, whereas the objective inquiry is a legal question.” Rakovich, 850 F.2d at 1210. “An objective analysis is less fact bound than a subjective analysis, making summary judgment a practical and effective means of terminating unnecessary litigation.” Id. at 1205. The majority’s approach, however, thwarts this goal. It requires a court to consider intent, inevitably sending more, if not most, cases to trial. I, respectfully, disagree with this outcome. Rather, I believe a court should only look to the objective facts and determine whether the actions violate clearly established constitutional rights; if not, then qualified immunity should be granted. If Rice’s actions in this case, therefore, can objectively reflect an affirmative action plan, then he should be entitled to qualified immunity. Intent should not be the controlling factor.

At the time in question, Rice’s actions satisfied the requirements in Lehman v. Yellow Freight System, Inc., 651 F.2d 520 (7th Cir.1981), that “(1) some type of statistical disparity between the local labor force and the minority composition of the employer’s work force and (2) a time limit on the plan” existed. Cygnar, 865 F.2d at 844 (citing Lehman). For these reasons, I would find that Rice’s objective actions did not violate clearly established constitutional rights and would entitle him to a grant of qualified immunity at summary judgment.

II.

I also disagree with the majority’s denial of summary judgment for Rice on Count V, the retaliation claim. The threshold inquiry in such a case is to determine whether the matter is one of public, or private, concern. See Altman v. Hurst, 734 F.2d 1240 (7th Cir.1984). I differ with the majority’s view that this is a matter of public concern.

The Supreme Court established the test in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) to determine when an issue involves a matter of public concern. The Connick test does not look to what may be conveyed by the employee’s speech, but rather requires a court to examine the reasons the employee is speaking.1 The Court held the speech involved, distribution of a questionnaire, was motivated solely by a private purpose. In such circumstances, the Court stated, “when a public employee speaks not as a citizen upon matters only of public concern, but instead as an employee upon matters of only personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency.” Connick, 461 U.S. at 147, 103 S.Ct. at 1690.

The mere fact that this case concerns a superintendent of police does not make this a matter of public concern. “To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark— and certainly every criticism directed at a public official — would plant the seed of a *1466constitutional case.” Connick, 461 U.S. at 149, 103 S.Ct. at 1691. Our decision in Altman recognized this principle when we determined that even though the case involved a chief of police, the allegations were still purely a matter of personal interest and not public concern.

In Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir.1985), this Court established a list of questions to be considered in deciding this issue. These are: “was it the employee’s point to bring wrongdoing to light? Or to raise other issues of public concern, because they are of public concern? Or was the point to further some purely private interest?” Linhart, 771 F.2d at 1010. If the answers to these questions reveal that the dispute was purely a private matter, then the court should dismiss the claim. In Yatvin v. Madison Metropolitan School Dist., 840 F.2d 412, 419-20 (7th Cir.1988), we applied the Lin-hart questions and determined that the bringing of a lawsuit alleging retaliation for filing a sex discrimination complaint against a school district was not activity protected by the first amendment because the lawsuit was not a matter of public concern. The plaintiff in Yatvin, we determined, only “wanted to advance her career, not promote a cause.” Id. at 419.

So, too, it is apparent in this case that the plaintiffs in filing their complaint were primarily challenging their demotions and transfers rather than trying to raise an issue of public concern. They sought to advance their careers and receive compensatory and punitive damages for the alleged wrongs. It was not their central intention to promote a cause of public concern. As was the case in Yatvin, the plaintiffs' action “does not seek relief against pervasive or systematic misconduct by a public agency or public officials, and, ... is not part of an overall effort by the plaintiff[s] ... to correct allegedly unlawful practices or bring them to public attention.” Yatvin, 840 F.2d at 420 (emphasis added). Race discrimination is a matter of public concern, but the plaintiffs did not seek to debate race discrimination, they were solely interested in advancing their own private employment interests.

III.

For the above stated reasons, I would reverse the district court’s denial of summary judgment on Counts III and V. I concur with the majority’s opinion on Count IV.

. Count V concerns whether the plaintiffs have stated a first amendment claim. It is appropriate to consider the plaintiffs' intent, not the government official’s, to decide this question under Connick.