explaining that we have pendent appellate jurisdiction only if the federal qualified immunity issues cannot be resolved without addressing the nonappealable collateral issues
How later courts described this case
- explaining that we have pendent appellate jurisdiction only if the federal qualified immunity issues cannot be resolved without addressing the nonappealable collateral issues
Written by the judges who cited it.
The opinion
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0310n.06
CASE NO. 17-5918
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
) FILED
MATHIS & SONS, INC., et al., ) Jun 22, 2018
) DEBORAH S. HUNT, Clerk
Plaintiffs-Appellees, )
)
v. )
) ON APPEAL FROM THE
COMMONWEALTH OF KENTUCKY ) UNITED STATES DISTRICT
TRANSPORTATION CABINET, et al., ) COURT FOR THE WESTERN
) DISTRICT OF KENTUCKY
Defendants-Appellants. )
)
Before: BATCHELDER, McKEAGUE, and GRIFFIN, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. In this interlocutory appeal from the denial
of a motion for summary judgment based on qualified immunity, the defendants contend (among
other things) that the plaintiffs’ right was not clearly established. We AFFIRM.
I.
Mathis & Sons, Inc. is a construction company. Its president, plaintiff Maureen Mathis, is
an African-American woman; her two adult sons are African-American men. In 2003, the
Kentucky Transportation Cabinet (KYTC) certified Mathis & Sons as a disadvantaged business
enterprise (DBE) for purposes of minority bidding on federally funded construction projects.
In April 2013, Mathis & Sons submitted a request to the KYTC’s Office of Civil Rights
and Small Business Development, seeking to add certain North American Industry Classification
System (NAICS) code designations to its DBE certification, so that it could also offer consulting
services. As Mathis & Sons informed KYTC, it needed the codes to finalize a large contract.
No. 17-5918
Mathis & Sons, et al. v. KY Transportation Cabinet, et al.
KYTC assigned Reed Hampton as the “lead investigator” for the request and assigned
defendant Shella Eagle to assist him. As the lead investigator, Hampton’s role was to submit a
recommendation to the KYTC Certification Committee, which ordinarily accepts the lead
investigator’s recommendation. Hampton had been a KYTC investigator for 13 years.
Based on the investigation, Hampton found that Mathis & Sons was qualified for the
NAICS code certifications, and he thought that Eagle agreed. Hampton drafted a report
recommending the approval of the NAICS codes as well as renewal of the DBE certification, and
told KYTC staff of that recommendation. Hampton then left on medical leave for several weeks.
While Hampton was out on leave, defendant Tyra Redus—the Executive Director of
KYTC’s Office of Civil Rights and Small Business Development—told Eagle to draft a different
recommendation: a recommendation advising the Committee to deny the NAICS code
certifications and also to de-certify Mathis & Sons from the DBE program. According to Redus
and defendant Melvin Bynes, a KYTC branch manager, the basis for this new recommendation
was their belief that Maureen Mathis did not actually control Mathis & Sons because her sons had
answered most of the investigators’ questions during the on-site interview. But even if that belief
were correct—though it was later proven not to be—it is noteworthy that the sons, like Maureen,
are African American, so the business was properly certified as a DBE either way.
Eagle submitted the recommendation for de-certification to the Committee, as instructed,
but listed Hampton as the investigator, making it appear as though it was his recommendation.
Hampton did not know that they had changed his recommendation. If she is to be believed, Eagle
claims that she was unaware of Hampton’s recommendation for approval.
In July 2013, the Committee met to consider Mathis & Sons’ request. Maureen Mathis
testified about her control of the company. An outraged Reed Hampton appeared at the meeting,
despite his still being out on medical leave (recovering from surgery), and argued for both the
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approval of the NAICS codes and recertification of Mathis & Sons in the DBE program. The
Committee requested additional information and deferred a decision until its August meeting, at
which it approved both the requested NAICS codes and the DBE recertification. But by that time,
because of the delay, Mathis & Sons had been replaced on the large contract.
Hampton filed internal complaints with KYTC, alleging that the DBE program treated
Caucasian applicants more favorably than African-American applicants, and providing several
specific examples of the alleged preferential treatment. The Federal Highway Administration’s
Kentucky Division Office (FHA) investigated Hampton’s complaint and though it found “no
evidence that the KYTC implemented its DBE Program such that it discriminated against older,
African American-owned applicants through disparate treatment” or “through disparate impact,”
it did find that “there was a disparity between the rates that African American-owned firms were
terminated or withdrawn compared to white-owned firms,” as happened here. Despite this finding,
the report concluded that “the Investigator could not draw a conclusion about the disparity” and
merely urged “KYTC to investigate the potential cause for this disparity.”
Mathis & Sons sued KYTC, Eagle, Redus, and Bynes, alleging racial discrimination in
violation of Title VI and 42 U.S.C. § 1983, and raising state-law claims of negligence and bad
faith. Hampton provided an affidavit to reassert and authenticate the facts and accusations that he
had made in his internal complaint. The defendants moved for summary judgment on several
bases, including claims of qualified immunity and sovereign immunity.
The district court granted sovereign immunity to KYTC and the individual defendants in
their official capacities. Mathis & Sons, Inc. v. Ky. Transp. Cabinet, 2017 WL 3045125, at *9
(W.D. Ky. July 18, 2017). But the court found that the “right to be free from racial discrimination
. . . was clearly established,” id. at *10, and that Mathis had produced sufficient evidence that a
reasonable juror could find that Eagle, Redus, and Bynes “were motivated by discriminatory intent
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or purpose” when they recommended denial and decertification, id. This evidence included: (1)
Hampton’s affidavit and complaint asserting specific incidents of differing treatment based on
race; (2) the independent FHA investigation report findings of select disparity; (3) the “doubt
[about] KYTC’s stated reason for seeking termination of the [] DBE certification” (i.e., that the
company somehow wasn’t a minority business because it was run by the African-American sons
rather than their African-American mother); and (4) the otherwise inexplicable act of submitting
the recommendation to the Committee as though it had been Hampton’s recommendation. Id. at
*10-11. The court framed these as material questions of fact and denied the individual defendants’
claims of qualified immunity.
II.
On appeal, Eagle, Redus, and Bynes raise four claims, including three that are untenable
and do not warrant reanimation here, namely that: (1) Mathis did not prove injury, claiming that
the plaintiffs “failed to demonstrate that they have suffered any constitutional deprivation so as to
implicate the protections of Section 1983,” Apt. Br. at 9, 11; (2) Mathis “failed to articulate any
viable Kentucky State Law claim” or “actionable claim of negligence under Kentucky law,” Apt.
Br. at 9, 13; and (3) defendants’ “conduct was at all times discretionary in nature,” so they were
“entitled to governmental immunity under Kentucky State Law,” Apt. Br. at 9, 13. Regarding the
first claim, we conclude after careful review of the record, the controlling law, and these
arguments, that the district court set out the applicable law and correctly applied that law to the
facts. Further discussion by this court would serve no useful purpose.
The other two are state-law claims over which we lack jurisdiction in this interlocutory
appeal based on federal qualified immunity. See McDonald v. Flake, 814 F.3d 804, 816 (6th Cir.
2016) (explaining that we have pendent appellate jurisdiction only if the federal qualified
immunity issues cannot be resolved without addressing the nonappealable collateral issues).
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The defendants’ fourth claim is that “there [wa]s no ‘clearly established’ law so as to put a
reasonable public official on notice that the conduct in question here would be constitutionally
violative.” Apt. Br. at 9, 12-13. Basically, the defendants’ argument is that they were duty bound
to pursue their legitimate concerns that Mathis & Sons was not actually eligible for DBE status
and they had no way of knowing that doing so would violate the Constitution.
On the one hand, this is an improper fact-based challenge to the district court’s finding that
Mathis & Sons produced sufficient evidence that a jury could find that the “concerns” were a
fabricated and implausible rationalization for racial discrimination. On interlocutory appeal from
the denial of qualified immunity, as here, we lack jurisdiction to “decide an appeal challenging the
district court’s determination of ‘evidence sufficiency.’” DiLuzio v. Vill. of Yorkville, 796 F.3d
604, 609 (6th Cir. 2015) (quoting Johnson v. Jones, 515 U.S. 304, 313 (1995)).
On the other hand, this is a purely legal challenge—over which we have jurisdiction, see
id. at 608-11—in which the defendants are claiming that the law did not clearly proscribe their
specific conduct. We may review this based on Mathis & Son’s proffered evidence and the
inferences the district court drew from that evidence, see id. at 609 (explaining that “a defendant
may not challenge the inferences the district court draws from those facts, as that too is a prohibited
fact-based appeal”), namely, that the alleged “concerns” were actually a fabrication used as cover
for the violation of Mathis & Sons’ rights, concocted by these defendants, who “were motivated
by discriminatory intent or purpose,” Mathis & Sons, 2017 WL 3045125 at *10.
The defendants argue that, even so, Mathis & Sons has failed to identify any precedent
directly on point to demonstrate that this conduct was contrary to “clearly established law,” as is
required under the second prong of the qualified immunity analysis. See White v. Pauly, 580 U.S.
--, 137 S.Ct. 548, 552 (2017). “But general statements of the law are not inherently incapable of
giving fair and clear warning, and in [some] instances a general constitutional rule already
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identified in the decisional law may apply with obvious clarity to the specific conduct in question,
even though the very action in question has not previously been held unlawful.” United States v.
Lanier, 520 U.S. 259, 271 (1997) (quotation marks and editorial marks omitted) (quoted with
approval in White, 137 S.Ct. at 552). As we have elsewhere opined:
Some personal liberties are so fundamental . . . as to need no specific explication in
our Constitution in order to ensure their protection against government invasion.
[For example,] [s]urreptitiously videotaping the plaintiffs in various states of
undress is plainly among them. . . . [A] person of ordinary common sense . . . would
know without need for specific instruction from a federal court, that . . .
[surreptitiously videotaping naked teenagers would violate their rights].
Brannum v. Overton Cty. Sch. Bd., 516 F.3d 489, 499 (6th Cir. 2008).
The question here, then, is whether the established law forbidding racial discrimination
would “apply with obvious clarity” to the defendants’ acts, if “motivated by discriminatory intent
or purpose” and intended to harm Mathis & Sons’ business. That is, would a KYTC employee of
ordinary common sense know, without need for specific instruction from a federal court, that
fabricating alleged concerns and falsifying Reed Hampton’s recommendation, due to racial
animus, would violate Mathis & Son’s rights? We are confident that he or she would know.
III.
For all of the foregoing reasons, we AFFIRM the judgment of the district court.
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