The opinion
United States Court of Appeals,
Fifth Circuit.
No. 95-40266
Summary Calendar.
Wilfred Waylon JACKSON, Plaintiff-Appellee,
v.
CITY OF ATLANTA, TX., et al., Defendants,
Jim Long, Individually and in his capacity as City Manager, et
al., Defendants-Appellants.
Jan. 24, 1996.
Appeal from the United States District Court for the Eastern
District of Texas.
Before WIENER, PARKER and DENNIS, Circuit Judges.
PER CURIAM:
Plaintiff-Appellee Wilfred Waylon Jackson sued the City of
Atlanta, Texas, as well as its city manager and several of its city
councilmen individually, asserting, inter alia, claims of
discrimination under both Title VII1 and 42 U.S.C. § 1983. Based
on immunity, the city manager and city councilmen (Defendants)—but
not the City of Atlanta—filed motions to dismiss or, in the
alternative, for summary judgment. Defendants appeal the district
court's denial of these motions. We dismiss the appeal, in part,
and reverse and remand, in part.
I
FACTS AND PROCEEDINGS
In April 1989, Atlanta promoted Jackson, a black male, to the
1
42 U.S.C. § 2000e.
1
position of Fire Chief in the Atlanta Fire Department (Department).
In December 1992, Jackson was terminated by Jim Long, the city
manager. In explanation, Long cited animosity, low morale, and
disharmony within the Department. Additionally, Long cited
Jackson's refusal to allow a subordinate to use the Department's
vehicle that is assigned to the Fire Chief. Jackson, the only
black department head in Atlanta, thought that racial prejudice
might have motivated his termination and requested a hearing before
the Atlanta City Council (Council). After hearing his complaints
in executive session, the Council announced that it had voted not
to reinstate Jackson.
Jackson then filed the instant suit in federal district court,
alleging, inter alia, causes of action for racial discrimination
under both Title VII and § 1983.2 Jackson does not dispute that
these two federal claims arise out of identical fact situations and
identical allegations of racial discrimination. On both claims,
the Defendants filed motions to dismiss for failure to state a
claim or, in the alternative, for a summary judgment of dismissal.
With respect to the § 1983 claim, these motions were based on
qualified immunity. The district court denied all motions, stating
that (1) Jackson had stated claims under both Title VII and § 1983,
and (2) the existence of genuine issues of fact precluded summary
2
Jackson also asserted supplemental state law claims for
defamation and intentional infliction of emotional distress. As
this is an interlocutory appeal of an immunity defense to a §
1983 claim, we have no jurisdiction over those issues at this
early juncture in the litigation. See Tamez v. City of San
Marcos, Tx., 62 F.3d 123, 124 (5th Cir.1995).
2
judgment on both claims. The Defendants timely filed this
interlocutory appeal.
II
DISCUSSION
A. JURISDICTION
Before addressing the substantive issues in this appeal, we
examine the basis for our jurisdiction.3 On appeal, the Defendants
challenge two aspects of the district court's order: First, they
urge that the Title VII claims against them should have been
dismissed, through either Rule 12(b)(6) or summary judgment. In
like manner, they contend that the § 1983 claims against them
should have been dismissed, through either Rule 12(b)(6) or summary
judgment based on qualified immunity.
Generally, we do not have interlocutory jurisdiction over the
denial of either a motion to dismiss or a motion for summary
judgment, as such pretrial orders are not "final decisions" for the
purposes of 28 U.S.C. § 1291.4 Denials of motions to dismiss and
motions for summary judgment in the Title VII context are non-final
pretrial orders. Consequently, in this interlocutory appeal, we do
not have jurisdiction to review the district court's order denying
the Defendants' pretrial motions to dismiss or for summary judgment
3
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987) ("This
Court must examine the basis of its jurisdiction, on its own
motion, if necessary.").
4
See Sorey v. Kellett, 849 F.2d 960, 961 (5th Cir.1988)
("Under 28 U.S.C. § 1291, the courts of appeals have jurisdiction
over "final decisions' of the district courts. Ordinarily, this
section precludes review of a district court's pretrial orders
until appeal from the final judgment.").
3
in Jackson's Title VII claims. We neither express nor imply an
opinion on the merits of Jackson's Title VII claims; we simply
dismiss the Title VII facet of this appeal for lack of appellate
jurisdiction and remand these claims for further proceedings.
Jackson's § 1983 claims are another matter altogether. In
Mitchell v. Forsyth,5 the Supreme Court held that "a district
court's denial of a claim of qualified immunity, to the extent that
it turns on an issue of law, is an appealable "final decision'
within the meaning of 28 U.S.C. § 1291 notwithstanding the absence
of a final judgment."6 Recently, in Johnson v. Jones,7 the Supreme
Court made clear that our interlocutory jurisdiction under Mitchell
begins and ends with the "purely legal" aspects of qualified
immunity.8 In Johnson, the Supreme Court reiterated the dichotomy
5
472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
6
Id. at 530, 105 S.Ct. at 2817-18; see also Hale v.
Townley, 45 F.3d 914, 918 (5th Cir.1995) ("An appellate court has
jurisdiction to review an interlocutory denial of qualified
immunity only to the extent that it "turns on an issue of law.' "
(quoting Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817-18)).
In Mitchell, the Court held that a district court's
order denying a defendant's motion for summary judgment was
an immediately appealable collateral order under Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221,
93 L.Ed. 1528 (1949), where (1) the defendant was a public
official asserting a defense of immunity, and (2) the issue
appealed concerned whether or not certain given facts showed
a violation of clearly established law. Mitchell, 472 U.S.
at 528, 105 S.Ct. at 2816-17.
7
Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132
L.Ed.2d 238 (1995).
8
Id. at ----, 115 S.Ct. at 2156 (holding that "a defendant,
entitled to invoke a qualified immunity defense, may not appeal a
district court's summary judgment order insofar as that order
determines whether or not the pretrial record sets forth a
4
in the grounds for denying a motion for summary judgment based on
qualified immunity: "(a) a determination about pre-existing
"clearly established' law, or (b) a determination about "genuine'
issues of fact for trial."9 The Court then held that we have
jurisdiction over the former, a purely-law-based denial of
qualified immunity, but that we have no jurisdiction over the
latter, a genuine-issue-of-fact-based denial of qualified
immunity.10 It follows that when we determine that a district
court's order denying qualified immunity turns on "purely legal"
grounds, we have jurisdiction to review it; but, when the district
court's denial turns on the existence of a factual dispute, we have
no jurisdiction and must dismiss the appeal.11
B. WHEN § 1983 AND TITLE VII MEET
Asserting a "purely legal" error, the Defendants contend that
allegations of discriminatory treatment in connection with public
"genuine' issue of fact for trial") (emphasis added).
9
Id. at ----, 115 S.Ct. at 2158.
10
Id. at ----, 115 S.Ct. at 2159.
11
Tamez, 62 F.3d at 125 ("The Court in Johnson held that a
defendant, entitled to invoke a qualified immunity defense, may
not appeal a district court's summary judgment order insofar as
that order determines whether or not the pretrial record sets
forth a genuine issue of fact for trial.") (quotations and
citations omitted); Buonocore v. Harris, 65 F.3d 347, 360 (4th
Cir.1995) ("The Jones court made it clear that appellate
jurisdiction over [purely legal issues] should not be regarded as
a basis for exercising pendant jurisdiction over fact-related
qualified immunity questions."); Babb v. Lake City Community
College, 66 F.3d 270 (11th Cir.1995) ("A district court's order
on qualified immunity which determines only a question of
"evidence sufficiency' regarding plaintiff's claim is not
appealable.").
5
employment that form the basis of a Title VII claim cannot form the
basis of a second, separate claim under § 1983 as well. We agree.
In Irby v. Smith,12 we held that a violation of Title VII cannot
also support a § 1983 suit.13 Section 1983 does not create any
substantive rights; it creates only a remedy for the violation of
a substantive federal right.14 Thus, § 1983 is not available when
"the governing statute provides an exclusive remedy for violations
of its terms."15
The governing statute, Title VII in this case, provides
Jackson's exclusive remedy.16 Congress intended for Title VII—with
its own substantive requirements, procedural rules, and remedies—to
be the exclusive means by which an employee may pursue a
discrimination claim. Allowing a plaintiff to state a
discrimination claim under § 1983 as well would enable him to
12
737 F.2d 1418 (5th Cir.1984).
13
Id. at 1429; see also Grady v. El Paso Community College,
979 F.2d 1111, 1113 (5th Cir.1992) ("[A] violation of Title VII
cannot support a § 1983 suit.").
In Johnston v. Harris County Flood Control Dist., 869
F.2d 1565 (5th Cir.1989), cert. denied, 493 U.S. 1019, 110
S.Ct. 718, 107 L.Ed.2d 738 (1990), we qualified our position
in Irby by holding that a plaintiff could pursue a remedy
under § 1983 as well as under Title VII when the employer's
conduct violates both Title VII and a separate
constitutional or statutory right. As Jackson alleges
racial discrimination as the sole basis for his § 1983
claim, he has not identified a separate constitutional or
statutory right and thus Johnston is inapplicable.
14
Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1,
28, 101 S.Ct. 1531, 1545-46, 67 L.Ed.2d 694 (1981).
15
Id. (citations omitted).
16
Irby, 737 F.2d at 1429.
6
sidestep the detailed and specific provisions of Title VII.17 In
denying Defendants' motion to dismiss Jackson's Title VII claims
under Rule 12(b)(6), the district court necessarily determined that
Jackson's allegations of racial discrimination are sufficient to
establish a clear violation of Title VII and thus a clear
deprivation of a federal right. Consequently, § 1983 is not
available to Jackson for either alternative or additional relief.
As Jackson thus has no access to a remedy under § 1983, it follows
that he may not assert such a claim. Thus, Jackson's putative §
1983 claims, arising as they do from precisely the same allegedly
discriminatory acts as do his Title VII claims, should have been
dismissed. Accordingly, we remand Jackson's § 1983 claims against
the Defendants to the district court with the instruction to
dismiss them.
C. OTHER ALLEGED ERRORS
The Defendants urge an additional error which has now been
rendered moot by our holding in the preceding paragraph. We refer
to the Defendants' insistence that, in addition to qualified
immunity, they are entitled to absolute legislative immunity. It
is well established that immunity, be it absolute or qualified, is
an affirmative defense available to public officials sued under §
1983.18 As we remand Jackson's § 1983 claims with instructions for
17
See Irby, 737 F.2d at 1429. For example, § 1983
authorizes compensatory and punitive damages, which in many cases
are not available in a Title VII case. Id.
18
See, e.g., Barker v. Norman, 651 F.2d 1107, 1120 (5th Cir.
Unit A 1981).
7
their dismissal, the Defendants no longer need the shelter of
absolute immunity. Accordingly, we dismiss as moot all appellate
issues arising from the Defendants' assertion of the affirmative
defense of absolute immunity.
III
CONCLUSION
For the forgoing reasons, the Defendants' interlocutory appeal
of the district court's refusal to dismiss Jackson's Title VII
claims are DISMISSED for want of jurisdiction. The same fate is
appropriate for Defendants' defense of absolute immunity, albeit on
grounds of mootness. The district court's order denying
Defendants' motion to dismiss Jackson's § 1983 claims, however, is
REVERSED and REMANDED with instructions to dismiss such claims
against the Defendants.
DISMISSED in part; REVERSED and REMANDED in part.
8