The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
----------------------------------- ELEVENTH CIRCUIT
NOV 6, 2006
No. 05-17110
THOMAS K. KAHN
Non-Argument Calendar
CLERK
-----------------------------------
D.C. Docket No. 04-03039-CV-BBM-1
JANE MCMILLAN,
Plaintiff-Appellee,
versus
DEKALB COUNTY, GEORGIA,
MARILYN BOYD DREW,
Defendants-Appellants,
VERNON JONES, et al.,
Defendants.
--------------------------------
Appeal from the United States District Court
for the Northern District of Georgia
---------------------------------
(November 6, 2006)
Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Defendants-Appellants DeKalb County, Georgia and Marilyn Boyd Drew,
Director of the Parks & Recreations Department (“PRD”) of DeKalb County,
appeal the denial of Drew’s motion for summary judgment on individual capacity
employment discrimination claims against her based on qualified immunity. No
reversible error has been shown; we affirm.
Plaintiff-Appellee Jane McMillan, a Caucasian female, was a 30-year
veteran employee of the PRD when she was terminated by Drew. Plaintiff alleged
that Drew, an African-American, terminated her on the basis of her race, in
violation of Title VII and § 1983. Drew denied wrongdoing, claimed the
termination decision was supported by the undisputed fact that Plaintiff “had been
implicated in misspending funds by two independent investigations,” and moved
to dismiss based on qualified immunity. The district court denied qualified
immunity concluding that the record failed to establish indisputably that Drew was
motivated -- at least in part -- by lawful considerations when she terminated
Plaintiff.
A district court denial of the affirmative defense of qualified immunity is an
immediately appealable collateral order provided the order appealed concerns a
pure legal decision on core qualified immunity issues. See Johnson v. Jones, 115
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S.Ct. 2151, 2156 (1995); Koch v. Rugg, 221 F.3d 1283, 1294 (11th Cir. 2000).
Interlocutory appeal of an order denying summary judgment to a defendant
entitled to invoke a qualified immunity defense is not available “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. Issues only of evidentiary sufficiency
that are distinct from core qualified immunity issues will support no immediate
appeal:
To be reviewable, a pretrial qualified immunity appeal
must present a legal question concerning a clearly
established federal right that can be decided apart from
considering sufficiency of the evidence relative to the
correctness of the plaintiff’s alleged facts.
Koch, 221 F.3d at 1294. But that a district court denial of qualified immunity was
fact-based is no absolute bar to appellate review in all circumstances. As we have
said,
so long as the core qualified immunity issue is raised on
appeal, a final, collateral order is being appealed, and the
appellate court has jurisdiction to hear the case,
including challenges to the district court's determination
that genuine issues of fact exist as to what conduct the
defendant engaged in.
McMillian v. Johnson, 88 F.3d 1554, 1563 (11th Cir. 1996).
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Plaintiff proffered evidence that Drew’s act in terminating Plaintiff’s
employment was racially motivated. The pretrial record disclosed comments
attributed to Drew and other county officials that showed racial hostility and
called for reducing the number of Caucasians at the PRD. Also, Drew effected the
termination before the final internal audit reports issued and without following
normal county procedures. Drew denied wrongdoing and advanced an adequate
lawful basis for Plaintiff’s termination: missteps taken by Plaintiff in effecting a
pay raise for a subordinate justified termination under DeKalb County policies.
That Drew acted, in part, with discriminatory motive does not defeat
entitlement to qualified immunity. As we have said, “[a]t least when an adequate
lawful motive is present, that a discriminatory motive might also exist does not
sweep qualified immunity from the field even at the summary judgment stage.”
Foy v. Holston, 94 F.3d 1528, 1534-35 (11th Cir. 1996). Drew argues that the
district court erred when it denied qualified immunity because a reasonable
official in Drew’s position could have believed her acts were lawful under the
circumstances and in the light of clearly established law. Drew argues that the
district court engaged impermissibly in abstractions when it denied qualified
immunity based on the general proposition that the right to be free from racial
discrimination was clearly established and that Plaintiff presented a jury issue on
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the underlying constitutional violation. Instead, Drew argues that the issue for
qualified immunity purposes is whether a reasonable official could have believed
that it was lawful to terminate an employee when presented with evidence of
misuse of public funds under circumstances where -- as here -- several of the
employee’s coworkers had been arrested for misuse of public funds.
Because Drew raises core qualified immunity issues and not just issues of
evidentiary sufficiency, we have jurisdiction over the final collateral order denying
qualified immunity. That being said, we see no error in the district court’s
qualified immunity analysis. In cases involving mixed motives, a public official is
not immunized from liability for an otherwise objectively valid act if the
complained of act was undertaken only based on improper motive. See Crawford-
El v. Britton, 118 S.Ct. 1585, 1594 (1997) (rejecting “proposal to immunize all
officials whose conduct is ‘objectively valid,’ regardless of improper intent.”); Foy
v. Holston, 94 F.3d 1528, 1535 n.9 (11th Cir. 1996) (in a case where intent is an
element of the constitutional tort, question for qualified immunity can not be just
whether some official acting without discriminatory intent could have acted
lawfully when acting as defendant acted). When improper motive is part of the
underlying constitutional tort, a defendant is entitled to qualified immunity only
when, among other things, “the record indisputably establishes that the defendant
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in fact was motivated, at least in part, by lawful considerations.” Stanley v. City
of Dalton, Ga., 219 F.3d 1280, 1296 (11th Cir. 2000) (emphasis in original); see
also Foy v. Holston, 94 F.3d at 1535 (“the record makes it clear that Defendants’
acts were actually motivated by lawful considerations without which they would
not have acted.”). Drew misapprehends the analytical framework applicable to
qualified immunity in mixed motive cases.
The district court observed correctly that the right to be free from racial
discrimination in the public workplace was a clearly established constitutional
right of which a reasonable official would have known. The district court also
recognized correctly that the payroll abuse attributed to Plaintiff could objectively
justify Plaintiff’s termination. Qualified immunity was denied at this stage
because the pretrial record failed to establish that Drew’s termination decision
indisputably was actually motivated at least in part by the payroll incident.
Drew takes issue with the district court’s conclusions on the evidentiary
sufficiency of her lawful motives. We have jurisdiction to review evidentiary
sufficiency issues when core qualified immunity issues also are raised. See
Stanley, 219 F.3d at 1287. Viewing the pre-trial record in the light most favorable
to Plaintiff -- as we and the district court are required to do -- the record fails to
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show indisputably that Drew was motivated (at least in part) by the legitimate
reason she proffered.*
AFFIRMED.
*
Our factual conclusions are for purposes of this interlocutory appeal only; “[a]t trial, it may turn
out that these ‘facts’ are not the real ‘facts.’” McMillian, 88 F.3d at 1563.
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