Ratliff v. DeKalb County, GA

United States Court of Appeals,

Eleventh Circuit.

No. 93-8986.

Mary Linda RATLIFF, Plaintiff-Appellee, Cross-Appellant,

v.

DeKALB COUNTY, GEORGIA; Thomas E. Brown, Jr., individually and

in his official capacity as Public Safety Director, DeKalb County

Department of Public Safety; Robert T. Burgess, Sr., individually

and in his official capacity as Chief of Police, DeKalb County

Department of Public Safety; N. Eugene Moss, Capt., individually

and in his official capacity as Commander, Division of Youth and

Sex Crimes, DeKalb County Department of Public Safety; John M.

Cunningham, Sgt., individually and in his official capacity as

Supervisor, Educational Services Unit, DeKalb County Department of

Public Safety and A.R. King, Capt., individually and in his

official capacity as Commander of Internal Affairs Division DeKalb

County Department of Public Safety, Defendants-Appellants, Cross-

Appellees.

Aug. 9, 1995.

Appeals from the United States District Court for the Northern

District of Georgia. (No. 1:91-cv-1853-HTW), Horace T. Ward, Judge.

Before EDMONDSON and CARNES, Circuit Judges, and HAND*, Senior

District Judge.

EDMONDSON, Circuit Judge:

Defendants appeal1 the district court's denial of qualified

immunity on Plaintiff Mary Linda Ratliff's equal protection

claims.2 Ratliff cross appeals the district court's grant of

*

Honorable W.B. Hand, Senior U.S. District Judge for the

Southern District of Alabama, sitting by designation.

1

Defendants initially argue that Ratliff's claims are time

barred. We are without jurisdiction to consider this issue

because statute of limitations rulings are interlocutory orders

which do not fall within the collateral order exception to

nonreviewability. See Digital Equip. Corp. v. Desktop Direct, --

- U.S. ----, ----, 114 S.Ct. 1992, 1998, 128 L.Ed.2d 842 (1994).

2

Defendant DeKalb County also appeals the denial of its

motion for summary judgment, a denial not about qualified

immunity, but about the merits. We lack pendent party

summary judgment based on qualified immunity on her first amendment

claims.3 Ratliff also requests this court to hold that the

individual defendants are not entitled to qualified immunity

against her claims for declaratory and injunctive relief.4

In reviewing the district court's denial of summary judgment,

we—in most qualified-immunity interlocutory appeals—accept the

facts which the district court assumed for the purposes of its

decision about whether the applicable law was clearly established.

See Johnson v. Jones, --- U.S. ----, ----, 115 S.Ct. 2151, 2159,

132 L.Ed.2d 238 (1995). Mary Linda Ratliff began work as a Public

Service Officer in defendant DeKalb County's Bureau of Police

Services in 1985. When she began in 1985, Ratliff was issued a

"sworn police identification card" and police uniform, but the

jurisdiction of the kind needed to consider denial of DeKalb

County's motion for summary judgment. See Swint v. Chambers

County Comm'n, --- U.S. ----, 115 S.Ct. 1203, 131 L.Ed.2d 60

(1995).

3

The grant of summary judgment based on qualified immunity

is not an ordinarily reviewable final judgment subject to

immediate appeal; assuming we have discretionary pendent

jurisdiction over this issue, see Swint, --- U.S. at ----, 115

S.Ct. at 1212, we decline to exercise it.

4

Assuming we have discretionary pendent jurisdiction over

this issue, see Swint, --- U.S. at ----, 115 S.Ct. at 1212, we

decline to exercise it. We, in passing, note this idea however.

Because qualified immunity is only a defense to personal

liability for monetary awards resulting from government officials

performing discretionary functions, qualified immunity may not be

effectively asserted as a defense to a claim for declaratory or

injunctive relief. See D'Aguanno, et al. v. Gallagher, 50 F.3d

877 (11th Cir.1995); Lassiter v. Alabama A & M University, 28

F.3d 1146, 1149 n. 2 (11th Cir.1994). But, as this court

recently held in speaking about attorneys fees, "such awards,

even in actions for injunctive and declaratory relief, are barred

when the defendant's conduct meets the objective good faith

standard encompassed by the qualified immunity doctrine."

D'Aguanno, at 882.

parties dispute whether Ratliff was ever a "sworn officer."

Ratliff's duties were to supervise county school crossing guards.

She never received sworn officer pay. In 1988, the Public Services

unit moved from the Public Safety building to an alternative school

building and combined with the Youth and Sex Crimes Unit commanded

by Defendant Moss. Public Services was placed under the command of

Defendant Cunningham, who reported, through a Lt. Rowell, to Moss.

Defendant Burgess was the Chief of Police at all times

relevant to the issues in this case, except from April 1989 through

December 1989, when Burgess served as Acting Director of Public

Safety. Defendant King was commander of the Internal Affairs

(I.A.) unit. King conducted I.A. investigations into allegations

of unethical conduct complained of by Ratliff, and into complaints

by a Colonel Farrar that Ratliff was untruthful and insubordinate.

The I.A. investigation of Ratliff concluded that the charges

against her were unfounded.

At the same time as the move to the new school building in

1988, Moss informed Ratliff that she was no sworn police officer,

would have to give up her uniform and weapon, and would have to

keep daily activity sheets. In 1990, Defendant Brown became the

Director of Public Safety and gave Ratliff official written notice

that she was not a sworn officer, could not wear the uniform or

gun, and was not to take the county car home when school was not in

session.

Ratliff filed suit in August 1991 under 42 U.S.C. § 1983,

alleging equal protection violations and violations of the First

Amendment and due process clause. Ratliff is still employed by the

county. Ratliff alleges that Defendants, all of whom were her

supervisors or superiors in rank, violated her equal protection

rights by discriminating against her on the basis of her sex and

retaliating against her for her complaints of discrimination.

Defendants moved for summary judgment. The district court

denied defendants qualified immunity for the equal protection

claim; but in so doing, the court did not differentiate between

Ratliff's equal protection claim for retaliation and her equal

protection claim for gender discrimination.

Defendants argue that the district court erred in denying

them qualified immunity on Ratliff's equal protection claim for

retaliation. The right to be free from retaliation is clearly

established as a first amendment right and as a statutory right

under Title VII; but no clearly established right exists under the

equal protection clause to be free from retaliation. Ratliff

responds that she does not allege an equal protection claim for

retaliation, but says that such a right does exist in any event.

In so arguing, Ratliff cites Cate v. Oldham, 707 F.2d 1176 (11th

Cir.1983), Bridges v. Russell, 757 F.2d 1155 (11th Cir.1985), and

Little v. North Miami, 805 F.2d 962 (11th Cir.1986). But, each of

these cases holds that a constitutional claim for retaliation may

be brought under 42 U.S.C. § 1983 pursuant to the first amendment,

not the equal protection clause. Because no established right

exists under the equal protection clause to be free from

retaliation, we reverse the district court's denial of qualified

immunity on Ratliff's equal-protection retaliation claim. See

generally Lassiter v. Alabama A & M University, 28 F.3d 1146 (11th

Cir.1994).

Plaintiff's claim of gender discrimination presents us with a

more complicated issue. In considering a motion for summary

judgment based on qualified immunity, the Supreme Court has held

that courts should pay no attention to the subjective intent of the

government actor. See Harlow v. Fitzgerald, 457 U.S. 800, 815-18,

102 S.Ct. 2727, 2737-38, 73 L.Ed.2d 396 (1982). Harlow was

intended to make a fundamental change in the law of immunity. And

the strict meaning of the words used in Harlow for the immunity

standard would protect public officials from personal liability

when the pertinent substantive law makes the official's state of

mind an essential element of the alleged constitutional violation.

Despite Harlow's words, we have said that in one kind of

qualified immunity case—where discriminatory intent is an element

of the tort—intent remains relevant.5 See Edwards v. Wallace

Community College, 49 F.3d 1517, 1524 (11th Cir.1995). See also

Nicholson v. Georgia Dep't of Human Resources, 918 F.2d 145, 147

(11th Cir.1990). We are bound by our earlier holding that, in

qualified immunity cases, intent is a relevant inquiry if

5

This limiting gloss on Harlow (and the later Supreme Court

decisions that stress the objective nature of qualified immunity)

subjects many public officials to trial and to personal liability

when the official's conduct—that is, what was done in the

physical world—could have doubtlessly been done lawfully by some

reasonable officials. And the gloss seems to contradict the idea

of objectively studying conduct—as opposed to speculating about

an official's subjective motivations for his conduct—to determine

whether immunity applies or not. In addition, the application of

the gloss to the workaday lives of public officials undercuts

considerably the public policy goals that the doctrine of

qualified immunity is supposed to advance. The Supreme Court has

not decided how allegations of discriminatory intent affect

qualified immunity.

discriminatory intent is a specific element of the constitutional

tort; and, we follow that rule here.

The district court determined that the evidence in the record

would allow a finding of discrimination on the part of defendants

and said that, as a legal matter, it was clearly established that

the discrimination would violate federal law. Defendants say that

nothing in the record here supports the notion that they, in fact,

discriminated against plaintiff on account of her gender.

Defendants may possibly be right; perhaps a full summary judgment

should have been granted to one or more of them. We have stressed

before to district courts that, given the ease of pleading cases of

discrimination, plaintiffs seeking to avoid summary judgment should

be strictly held to the requirements of Rule 56(e); the plaintiff

must present specific nonconclusory facts that would support a jury

verdict against the particular defendant on discriminatory intent.

See Edwards, 49 F.3d at 1524.

But, we decline to review the denial of summary judgment on

this ground, that is, that the district court in considering

defendant's motions assumed erroneous facts or assumed facts which

were unsupported by evidence in the record. This appeal is an

interlocutory one. We mark the Supreme Court's decision and

opinion in Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132

L.Ed.2d 238 (1995), which reminded us of the importance of the

final judgment rule for appellate jurisdiction and which warned

against easy resort to pendent jurisdiction. We question that we

have the right in this case to exercise discretionary pendent

jurisdiction over defendant's attack on the district court's

fact-based decisions; but even if the law would allow it, we

decline to exercise that jurisdiction.

Given the facts which the district court assumed for the

purpose of ruling on defendants' motions, we—addressing the matter

of qualified immunity only—affirm the denial of summary judgment

for the individual defendants on the gender discrimination claim.

REVERSED IN PART, AFFIRMED IN PART and REMANDED.