Gena Duckworth etc. v. Bart Saracino etc.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-3433

___________

Gena Duckworth; Tamatha Fischer; *

Sandra Delaney, *

*

Plaintiffs – Appellees, *

*

v. *

*

St. Louis Metropolitan Police *

Department; Board of Police *

Commissioners of the City of * Appeal from the United States

St. Louis, * District Court for the Eastern

* District of Missouri.

Defendants, *

*

Bart Saracino; Michael J. Quinn; *

Francis G. Slay, ex officio, as Members *

of the Board of Police Commissioners; *

Chief Joseph Mokwa; Roy *

Joachimstaler, Major; Antoinette Filla, *

Captain, in their individual and official *

capacities; Jo Ann Freeman Morrow, *

Member of the Board of Police *

Commissioners; Chris Goodson, *

Member of the Board of Police *

Commissioners, *

*

Defendants – Appellants. *

___________

Submitted: April 10, 2007

Filed: July 19, 2007

___________

Before MURPHY, BRIGHT, and BENTON, Circuit Judges.

___________

BENTON, Circuit Judge.

Three female officers sued their superiors for gender discrimination under 42

U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and the

Missouri Human Rights Act, Mo. Rev. Stat. §§ 213.010-213.095. The district court

denied the defense of qualified immunity to the police superiors. This court reverses

and remands.

I.

After a transfer left no female officers on the night watch in District One,

Captain Antoinette M. Filla asked if any female officers would work then. None

volunteered. Four months later, Captain Filla assigned plaintiff Sandra Delaney to the

night watch. Delaney was the least senior of the experienced female officers in the

district. After working the night watch for two months, Delaney complained that her

husband was called up for military duty and she had difficulty obtaining a babysitter.

On February 6, 2003, Captain Filla emailed all personnel: “I believe there is

a definite need for female officers on the nightwatch.” On the advice of Major Roy

Joachimstaler – her immediate superior – she assigned the three plaintiffs (based on

seniority) to work the night watch, initially rotating for 28-day periods.

On February 10, plaintiffs filed a grievance (emphasis in original):

[We] believe it is unfair to order us based upon our gender, to

rotate monthly on the night watch. This order is in violation of

Rules Manual designated in Section 3.114 where it is mandated

that police officers be permanently assigned to a platoon. This

order is also in violation of Title VII of the Civil Rights Act 1964

wherein it is illegal to discriminate against employees in regards

-2-

to sex, when the policy is applied in terms of condition of

employment including placement.

On February 14, Captain Filla explained her position in an intra-department report to

the plaintiffs and her superiors (emphasis in original):

I believe the assignment of females to all watches is imperative to

the operation of any command, not just patrol operations. It is not

only important that all watches in every command be as diverse as

the population we serve, but also as diverse as the entire

population of our police department. . . .

The unique operations of law enforcement, also requires unique

responsibilities by female and male officers, responsibilities which

no other profession requires. We have to consider the safety of all

personnel on the street when assigning our officers to crucial

positions; for example, the searching of suspects at incident

scenes.

....

I currently have fifteen (15) female officers (6% of authorized

strength) assigned to District One, with none assigned to the

nightwatch. We felt it was important to have our females assigned

strategically to cover several recreation brackets of all watches.

As authority, Captain Filla cited Special Order 90-S-7, which provides: “District

commanders may reassign an officer from his/her assigned work schedule provided

the commander has sufficient justification to do so.” Her “resolution to this Grievance

is to assign three (3) female officers [plaintiffs] to the nightwatch permanently, with

one in each of the three precincts.” Plaintiffs received a 10 percent pay increase while

working the night watch.

On February 25, plaintiffs filed a second grievance claiming the permanent

placement on the night watch was retaliation for their original grievance. Captain

-3-

Filla rejected the grievance: “Your assignment to the nightwatch was based on the

District’s needs and operations, not on personal issues.”

On review, the Grievance Committee found that although the initial rotation

violated Department policy, the violation was corrected by the permanent assignment.

The Committee recommended the grievance be rejected. The Committee noted,

however, that civil rights violations are outside the scope of the grievance procedure.

Police Chief Joseph J. Mokwa agreed with the recommendation.

Chief Mokwa later testified that although “I don’t think that necessarily every

Captain would agree with her . . . this is Tony Filla’s command, and she has the

authority to make those decisions for her command.” Major Joachimstaler

acknowledged that “[t]here’s laws against” race-based and gender-based personnel

decisions, and that “[i]t’s not a Chief’s decision. It’s a decision of district command

[Captain Filla] to assign personnel.” Major Joachimstaler also stated that some

women should work nights because “that’s the optimum for the optimum operation

of the district . . . Not just nights, [but] on all watches.”

Plaintiffs allege their superiors discriminated against them based on gender, and

retaliated when they complained. The district court denied the defense of qualified

immunity to the police superiors, who appeal.

II.

Plaintiffs first contend that this court lacks jurisdiction because “Appellants

challenge only the factual findings of the district court.” See Bearden v. Lemon, 475

F.3d 926, 930 (8th Cir. 2007), quoting Johnson v. Jones, 515 U.S. 304, 313 (1995)

(“a question of evidence sufficiency, i.e., which facts a party may, or may not, be able

to prove at trial . . . is not appealable”); Thomas v. Talley, 251 F.3d 743, 746 (8th Cir.

2001) (“we lack jurisdiction over this interlocutory appeal” because “Captain Talley

is asking us to engage in the time-consuming task of reviewing a factual

-4-

controversy”). The parties agree, however, that the sole issue on appeal is whether the

superiors are entitled to qualified immunity.1 Whether qualified immunity applies is

a legal issue. See Bearden, 475 F.3d at 930 (“In considering the immediate appeal

from the denial of qualified immunity, the appealable issue is a purely legal one,

whether the facts alleged . . . support a claim of violation of clearly established law”);

Moore v. Duffy, 255 F.3d 543, 545 (8th Cir. 2001), quoting Behrens v. Pelletier, 516

U.S. 299, 313 (1996) (“summary judgment determinations are appealable when they

resolve a dispute concerning an abstract issue of law relating to qualified immunity

. . . typically, the issue whether the federal right allegedly infringed was clearly

established”). This court has jurisdiction, and plaintiffs’ motion to dismiss the appeal

is denied.

III.

“This Court reviews the rejection of a qualified-immunity defense de novo.”

Herts v. Smith, 345 F.3d 581, 584 (8th Cir. 2003), citing Burnham v. Ianni, 119 F.3d

668, 673 (8th Cir. 1997) (en banc); see also Pace v. City of Des Moines, 201 F.3d

1050, 1052 (8th Cir. 2000) (same). This court ordinarily looks at the record in the

light most favorable to the party opposing the motion, drawing all inferences most

favorable to that party. Burnham, 119 F.3d at 673.

In determining whether qualified immunity applies, this court first must

examine: “Taken in the light most favorable to the party asserting the injury, do the

1

Plaintiffs’ Title VII (and parallel state law) claims are not at issue on this

appeal. See Genas v. State of N.Y. Corr. Servs., 75 F.3d 825, 829-30 n.3 (2d Cir.

1996) (“the doctrine of qualified immunity is irrelevant to plaintiff's Title VII

claims”); Harvey v. Blake, 913 F.2d 226, 228 (5th Cir. 1990) (“Because the doctrine

of qualified immunity protects a public official from liability for money damages in

her individual capacity only, the doctrine is inapplicable in the Title VII context”); Wu

v. Thomas, 996 F.2d 271, 273 (11th Cir. 1993) (“Qualified immunity is no defense

to a Title VII action”).

-5-

facts alleged show the officer's conduct violated a constitutional right? This must be

the initial inquiry.” See Scott v. Harris, 550 U.S. __ 127 S. Ct. 1769, 1774 (2007)

quoting Saucier v. Katz, 533 U.S. 194, 201 (2001). “If, and only if, the court finds a

violation of a constitutional right, ‘the next, sequential step is to ask whether the right

was clearly established . . . in light of the specific context of the case.’” Id., quoting

Saucier, 533 U.S. at 201; see also Burnham, 119 F.3d at 673.

A.

Plaintiffs’ “right to be free from gender discrimination is secured by the equal

protection clause of the Fourteenth Amendment.” Tipler v. Douglas County, Neb.,

482 F.3d 1023, 1027 (8th Cir. 2007); Ottman v. City of Independence, 341 F.3d 751,

756 (8th Cir. 2003) (“intentional gender discrimination in public employment by

persons acting under color of state law violates the Equal Protection Clause of the

Fourteenth Amendment”); see United States v. Virginia, 518 U.S. 515, 532 (1996).

Intentional discrimination may be shown by direct or circumstantial evidence. See

Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004).

Viewing the facts favorably to plaintiffs, there is direct evidence of gender

discrimination. Captain Filla emailed all personnel: “I believe there is a definite need

for female officers on the nightwatch.” On the advice of Major Joachimstaler, she

reassigned only females to work the night watch. Chief Mokwa directly participated

in the reassignments by approving them. There was a specific link between their

belief about “female officers” and the reassignments. Defendants admit: “It is true

that Appellees’ gender was the reason they were involuntarily assigned to the night

watch.” See Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1017 (8th Cir. 1999)

(direct evidence includes “proof of an admission that gender was the reason for an

action”).2

2

The police superiors contend that reassignment to the night watch is not an

adverse employment action. The district court found that “there is a question of

-6-

When the state makes a classification based on gender, “the reviewing court

must determine whether the proffered justification is exceedingly persuasive.” See

Tipler, 482 F.3d at 1028, quoting Virginia, 518 U.S. at 533. “For a gender-based

classification to withstand equal protection scrutiny, it must be established at least that

the [challenged] classification serves important governmental objectives and that the

discriminatory means employed are substantially related to the achievement of those

objectives.” Nguyen v. INS, 533 U.S. 53, 60 (2001) (internal quotations omitted).

In this case, Captain Filla’s intra-department report identifies two governmental

objectives. First, she believed it was “important that all watches in every command

be as diverse as the population we serve.” Second, Filla aimed “to consider the safety

of all personnel on the street when assigning our officers to crucial positions; for

example, the searching of suspects at incident scenes.” The record here does not

demonstrate the importance of these objectives. Other than Captain Filla’s report,

there is little evidence of the importance of assigning females to night watches. There

was no city-wide policy or procedure to assign females to night watches. When Chief

Mokwa was asked if he promulgated any order requiring a certain number of females

be assigned to any given shift, he stated: “No. Because I haven’t seen any analysis

that would require me to do that.” Chief Mokwa stated that during his four years as

chief, no other supervisor had recommended “that females should be assigned to

various watches.” Chief Mokwa acknowledged that he did not think “that necessarily

every Captain would agree with [Filla],” and stated “I don’t know” whether he would

agree with her decision. Major Joachimstaler said that he “would never submit a

memo or written document saying we should gender base or race base any personnel

material fact as to whether a reasonable employee would view Filla’s decision to place

Plaintiffs on the night watch permanently to be a materially adverse action.” In this

qualified-immunity appeal, this court will not review a factual controversy. See

Thomas, 251 F.3d at 746. See generally Phillips v. Collings, 256 F.3d 843, 848 (8th

Cir. 2001) (“we need not determine for purposes of this appeal whether discrimination

claims premised on 42 U.S.C. § 1983 require a showing of an adverse employment

action”).

-7-

decisions, because you shouldn’t do it that way.” On the facts of this case, the police

superiors did not show the governmental objectives were important.3 Therefore, the

proffered justifications are not exceedingly persuasive.

B.

The next step in the qualified immunity analysis “is to ask whether the right was

clearly established . . . in light of the specific context of the case.” See Saucier v.

Katz, 533 U.S. 194, 201 (2001). “The relevant, dispositive inquiry in determining

whether a right is clearly established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted.” Id. at 202.

Reasonable mistakes “can be made as to the legal constraints on particular police

conduct. . . . If the officer's mistake as to what the law requires is reasonable . . . the

officer is entitled to the immunity defense.” McClendon v. Story County Sheriff’s

Office, 403 F.3d 510, 515 (8th Cir. 2005), quoting Saucier, 533 U.S. at 202.

Plaintiffs repeatedly emphasize that Chief Mokwa promulgated as department

policy – and Captain Filla and Major Joachimstaler knew about – Special Order 2001-

S-9. It says: “Management actions such as hiring and firing, promotion or failure to

promote, demotion, reassignment or transfer . . . will not discriminatorily be based on

race, color, religion, sex, national origin, age or disability.”

Special Order 2001-S-9, however, is general and abstract. The qualifier

“discriminatorily” anticipates that some decisions based on sex will not be

discriminatory. Other Special Orders give instances of decisions based on sex that

might not be discriminatory. For example, Special Order 92-S-2 says, “It is preferable

for suspects and prisoners to be searched by an officer of the same sex.” Special

3

The police superiors’ repeated argument that “there is no evidence that Captain

Filla . . . harbors animosity toward other women” is irrelevant to the importance of the

governmental objectives in this case.

-8-

Order 94-S-7 states, “A female prisoner shall be searched only by a female officer.”

That Order further provides, “Female adult prisoners shall only be transported with

other female adult prisoners. Juvenile prisoners shall only be transported with other

juvenile prisoners of the same sex.” Special Order 86-S-4 says, “All persons who are

to be confined . . . shall be subject to a thorough custodial search conducted by a

person of the same sex as the person being searched whenever reasonably possible.”

For body cavity searches: “The search must be conducted in the presence of an officer

of the same sex as the person to be searched.” Strip searches are to be conducted by

“an officer and in the presence of officers of the same sex as the person to be

searched.” In sum, these Special Orders do not address the specific context of shift-

reassignments based on gender.

In the specific context of this case, the superiors were confronted with the

situation where no female officers were working the night watch in District One.

Captain Filla thought that Special Order 90-S-7 granted her authority to reassign

Plaintiffs, as long as she had a “sufficient justification.” Major Joachimstaler believed

that having some females on the night watch was the “optimum for the optimum

operation of the district.” Chief Mokwa testified that Captain Filla had “the authority

to make those decisions for her command.” Captain Filla testified that female

domestic violence victims should be interviewed by female officers, and she was

concerned about the safety of all personnel and the searching of female suspects at

incident scenes.

Reasonable police administrators could believe that assigning female officers

to the night watch was lawful. See Pace v. City of Des Moines, 201 F.3d 1050, 1052

(8th Cir. 2000), citing Anderson v. Creighton, 483 U.S. 635, 641 (1987) (“Qualified

immunity shields Officer Danner from suit if a reasonable officer could have believed

his actions to be lawful, in light of clearly established law and the information that he

possessed”). This reasonable belief about assigning female officers includes a

reasonable belief by Chief Mokwa that Captain Filla (and other officers) did not need

further training or supervision.

-9-

In a similar context, this court has approved reassignments based on gender.

Female correctional officers may be transferred to a particular shift because of gender

(based on an exceedingly persuasive justification). See Tipler v. Douglas County,

Neb., 482 F.3d 1023, 1028 (8th Cir. 2007) (equal protection not violated when jail

showed important governmental objectives “to implement state law, the jail standards,

the union agreement, and proper prison administration;” and the jail “employed means

that were substantially related” to achieving the objectives), citing Tharp v. Iowa

Dep’t of Corrs., 68 F.3d 223, 226 (8th Cir. 1995), cert. denied, 517 U.S. 1135 (1996)

(gender-based policy was reasonable when it was a minimal restriction on

employment and “addresses female inmate privacy concerns, improves the Facility's

rehabilitative services to female inmates, and advances the interests of female

employees”). Cf. Timm v. Gunter, 917 F.2d 1093, 1102 n.3 (8th Cir. 1990) (a

“staffing restriction does not violate Title VII” because “a minimal restriction such as

the Unit 5 gender-based staffing restriction does not deprive female employees of any

employment opportunities”). The present case is unlike Goodwin v. Circuit Court of

St. Louis County, 729 F.2d 541 (8th Cir. 1984), where the female hearing officer was

transferred after the unreasonable defendant said, “This court will never run well so

long as there are women in charge,” and “This Court won’t run smoothly until we get

rid of these g_ _d_ _ _ women.” Id. at 544.

Here, although the plaintiffs were impermissibly reassigned without an

exceedingly persuasive justification, the decision – although mistaken – was

reasonable. “The issue is not whether the defendant acted wrongly, but whether

reasonable persons would know they acted in a manner which deprived another of a

known constitutional right.” Herts v. Smith, 345 F.3d 581, 585 (8th Cir. 2003),

quoting Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002). Based on the defendants’

reasonable judgments, qualified immunity should have been granted.

-10-

IV.

The police superiors were entitled to qualified immunity on counts IV and V,

the 42 U.S.C. § 1983 claims. Appellees’ motion for sanctions is denied. The

judgment of the district court is reversed in part, and the case remanded.

______________________________

-11-