REVISED IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
No. 96-20326 _______________
BARBARA COLEMAN,
Plaintiff-Appellee,
VERSUS
HOUSTON INDEPENDENT SCHOOL DISTRICT, et al.,
Defendants,
ANITA ELLIS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for the Southern District of Texas _________________________
May 19, 1997
Before REYNALDO G. GARZA, SMITH, and EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Defendant Anita Ellis takes this interlocutory appeal from the
denial of her partial motion for summary judgment, contending that
she is entitled to qualified immunity from suit in her personal
capacity. Concluding that plaintiff Barbara Coleman has failed to
demonstrate that Ellis violated a clearly established constitu- tional right, as required by Siegert v. Gilley, 500 U.S. 226
(1991), we reverse.
I.
In 1994, Ellis was the principal at Ryan Middle School
(“Ryan”), an institution within the defendant Houston Independent
School District (“HISD”). When the position of assistant principal
became available, Ellis informed Coleman, with whom she was
previously acquainted, of the opening. Coleman, who is white,
interviewed for the position and assured the committee that she
could write and speak Spanish, which Ellis considered a prerequi-
site for the assistant principal in the bilingual environment at
the school. Thereafter, Ellis recommended that Coleman be
appointed assistant principal.
Ellis sent her recommendation to Andre Hornsby, district
superintendent of HISD with supervisory authority over Ryan. By
affidavit, Hornsby testified that soon after receiving the
recommendation, he obtained information from another school
district administrator discrediting Coleman’s qualifications.
Because this communication allegedly raised concerns that Coleman
was not actually bilingual, as she had promised, Hornsby was
reluctant to place Coleman permanently in the position of assistant
principal. Therefore, at Hornsby's request, Ellis and Hornsby
agreed to appoint Coleman to the position of “acting” assistant
principal, thereby affording them an opportunity to evaluate her
performance during the remainder of the 1994-95 academic year.
2 Coleman served as “acting” assistant principal at Ryan during
the spring semester of that year. The parties hotly dispute
whether her performance was satisfactory. By affidavit, Ellis
testified that Coleman failed to demonstrate a functional fluency
in Spanish during the course of the semester, with adverse
consequences for relations between the administration and the
student body. Coleman emphatically denied these charges, insisting
that she had adequately demonstrated fluency in Spanish; allega-
tions to the contrary, she claims, are merely a pretext for
impermissible racial discrimination.
Regardless of her performance as “acting” assistant principal,
Coleman admits that Ellis notified her in early June 1995 that she
intended to recommend Coleman for the assistant principal position,
and Ellis simultaneously requested that Coleman begin drafting the
papers necessary for the permanent appointment. On June 14, 1995,
however, Hornsby advised Coleman that she would not receive a
permanent appointment as assistant principal at Ryan. Coleman
alleges that Hornsby explained it was necessary for him to hire an
Hispanic as the assistant principal; Hornsby vehemently denies the
allegation, claiming that he merely advised Coleman that the new
assistant principal must be bilingual, a qualification Coleman had
not adequately demonstrated during her tenure as “acting” assistant
principal.
Believing herself to be the victim of unlawful racial
discrimination, Coleman filed suit against HISD, Ellis, Hornsby,
and Parlee Crawford, naming the individual defendants in their
3 official and individual capacities.1 Coleman alleged that defen-
dants' actions constituted unlawful racial and national origin
discrimination in violation of the Equal Protection Clause and
42 U.S.C §§ 1981 and 1983 and conspiracy to discriminate against
her in violation of 42 U.S.C. § 1985.
The individual defendants pleaded the affirmative defense of
qualified immunity and, after limited discovery, filed a partial
motion for summary judgment on that basis. The district court
granted summary judgment to Crawford and Hornsby concerning the
allegations of discrimination at Jones High School but denied
qualified immunity to Ellis and Hornsby concerning the allegations
of discrimination at Ryan. Ellis alone appeals the denial of
qualified immunity.
II.
Before reaching the merits, we must determine whether we have
appellate jurisdiction in this interlocutory appeal. Coleman
claims that the order denying qualified immunity to Ellis was an
interlocutory order, based on the sufficiency of the evidence,
which is not appealable. We disagree.
A.
1 The complaint alleged two independent acts of unlawful discrimination: first, the denial of promotion to the position of permanent assistant principal at Ryan, and second, the denial of appointment to the position of assistant principal at Jones High School. While the HISD and Hornsby were named as responsible defendants in both incidents, Ellis was named only in the specific allegations concerning Ryan, and Crawford was named only in the allegations concerning Jones High School.
4 District court orders denying summary judgment on the basis of
qualified immunity are immediately appealable under the collateral
order doctrine, notwithstanding their interlocutory character, when
based on a conclusion of law. See Mitchell v. Forsyth, 472 U.S.
511, 530 (1985). In contrast, such orders are not immediately
appealable if they are based on sufficiency of the evidence. See
Johnson v. Jones, 115 S. Ct. 2151, 2156 (1995). Therefore, orders
denying qualified immunity are immediately appealable only if they
are predicated on pure conclusions of law, and not if a “genuine
issue of material fact” precludes summary judgment on the question
of qualified immunity. We reject Coleman's assertion that the
instant case falls in the latter category.
The Supreme Court has recently clarified this distinction in
Behrens v. Pelletier, 116 S. Ct. 834 (1996), explaining that the
existence of a genuine issue of material fact does not necessarily
preclude immediate appeal of an order denying qualified immunity.
Insofar as the district court order determines a question of law,
the Court held, the denial of qualified immunity is appealable,
notwithstanding the existence of a genuine issue of material fact.
“Johnson permits petitioner to claim on appeal that all of the
conduct which the District Court deemed sufficiently supported for
purposes of summary judgment met the Harlow standard of 'objective
legal reasonableness.'” Id. at 842; see also Harlow v. Fitzgerald,
457 U.S. 800 (1982) (articulating the test for qualified immunity);
accord Hare v. City of Corinth, 74 F.3d 633, 638 (5th Cir. 1996)
(en banc).
5 Assumed facts are treated as undisputed facts in this
analysis. In the aftermath of Jones and Behrens, we retain
interlocutory jurisdiction to “take, as given, the facts that the
district court assumed when it denied summary judgment,” Jones,
115 S. Ct. at 2159, and to determine whether those facts are
sufficient to state a claim under clearly established law, Nerren
v. Livingston Police Dep’t, 86 F.3d 469, 472 (5th Cir. 1996); Cantu
v. Rocha, 77 F.3d 795, 802-03 (5th Cir. 1996). “Denial of summary
judgment on the ground of qualified immunity is immediately
appealable to the extent that the question on appeal is whether the
undisputed facts amount to a violation of clearly established law.”
Kelly v. Foti, 77 F.3d 819, 821 (5th Cir. 1996).
Ellis does not challenge the sufficiency of the evidence
underlying Coleman’s allegations of discrimination. Instead,
taking as given the facts assumed by the district court, Ellis
claims that she is entitled to qualified immunity as a matter of
law, because those assumed facts do not constitute a violation of
clearly established federal law. Therefore, under the rule of
Jones and Behrens, we may exercise appellate jurisdiction over this
interlocutory appeal, for in doing so we do not decide the
sufficiency of the evidence, nor do we decide disputed factual
contentions.
B.
We must next identify what facts the district court assumed
when it denied summary judgment. This is no easy task in the
6 instant case. Unfortunately, because the court neither entered a
written order denying Ellis qualified immunity, nor specified its
factual assumptions for the record, we must “undertake a cumbersome
review of the record to determine what facts the district court, in
the light most favorable to the nonmoving party, likely assumed.”
Jones, 115 S. Ct. at 2159; accord Behrens, 116 S. Ct. at 842.
The grounds upon which the district court denied qualified
immunity emerge from a close review of the record. Of paramount
importance is the fact that the court did not deny summary judgment
because a genuine issue of material fact existed concerning the
allegations that Ellis intentionally discriminated against Coleman.
To the contrary, the court assumed that Hornsby, “from all of the
evidence, is the principal active administrator” in the contested
employment decisions, whereas Ellis was merely the instrument of
his will. As the district court explained:
The evidence suggests, that is before me now and it is clearly not fully developed, that under pressure from her superiors, Ellis bent to his purpose. Whether she bent far enough to be ultimately liable, I have no idea at this stage. It seems clear that under circumstances which are understandably difficult for her, she was caught between an assistant principal and a deputy district superintendent. I believe that the case must continue against those two individuals.
And Ms. Ellis, this just may be one more illustra- tion that no good deed goes unpunished. If you hadn’t recommended her in the first place, you wouldn’t be here. But unfortunately, I think you’ve gotten caught in the cross-fire. But jurisprudence is that you cannot accede to a superior’s position if it turns out to be unlawful.
Consequently, the court denied qualified immunity to both Hornsby
and Ellis, because a genuine issue of material fact existed as to
7 whether Hornsby had engaged in intentional discrimination.2 “If
she responded to an illegal order,” the court opined, “the person
who gives the order and the person who obeys it and takes the
action, are both responsible and neither is protected by qualified
immunity.”3
On appeal, Ellis argues that the district court erroneously
imputed Hornsby's alleged discriminatory intent to her, thereby
denying her qualified immunity despite the court’s assumption that
Ellis did not intentionally discriminate against Coleman. Under
these circumstances, Ellis claims, she was entitled to summary
judgment on the basis of qualified immunity. We agree.4
III.
2 Throughout the summary judgment hearing concerning qualified immunity, the court expressed its opinion that Hornsby, not Ellis, was the principal actor who had initiated the contested employment decisions. “The motivation may be in question,” the district court said, “but the motivation, if it was, was Hornsby’s motivation.” Elsewhere, the court noted that “Hornsby apparently had an agenda different from Ellis’ and acted on it.” 3 The court characterized Ellis as an “accessory after the fact” and suggested that her position was tantamount to the “Nuremberg defense.” Indeed, the court expressly rejected allegations that Ellis had intentionally discrimi- nated against Coleman, concluding that “frankly, Ellis’s role seems to have been far more supportive than derogatory than [sic] Coleman’s efforts. She gets caught between Hornsby and Coleman at some point.” 4 Given the interlocutory nature of this appeal, we express no opinion as to whether the district court correctly characterized Hornsby's and Ellis's relative responsibilities for the contested employment decisions. Indeed, because such a determination would require us to evaluate the sufficiency of the evidence underlying the claim, we would not have jurisdiction to engage in such an inquiry. See Jones, 115 S. Ct. at 2156; Cantu, 77 F.3d at 802-03. Instead, we merely recount the assumptions articulated by the district court, for the limited purpose of making the purely legal determination of whether the facts assumed amount to a violation of clearly established law. See Nerren, 86 F.3d at 472; see also Behrens, 116 S. Ct. at 842 (authorizing courts of appeals to determine the facts assumed by the district court for purposes of interlocutory appeal); Jones, 115 S. Ct. at 2159 (same). In other words, the question of whether the district court was correct in its assumptions awaits another day.
8 Qualified immunity shields government officials performing
discretionary functions from individual liability for civil damages
“insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
We review a claim of qualified immunity under a two-step process.
First, we determine whether the plaintiff has alleged the violation
of a “clearly established constitutional right” under currently
applicable constitutional standards. If so, we consider whether
the defendant’s conduct was nevertheless “objectively reasonable.”
Nerren, 86 F.3d at 473; Kelly, 77 F.3d at 821.
In Siegert v. Gilley, 500 U.S. 226, 231 (1991), the Court
emphasized that the threshold inquiry in a qualified immunity case
is whether the plaintiff has sufficiently alleged the violation of
a clearly established constitutional right. If not, summary
judgment is appropriate, and the case should be dismissed.
Furthermore, “[a] necessary concomitant to the determination
of whether the constitutional right asserted by a plaintiff is
'clearly established' at the time the defendant acted is the
determination of whether the plaintiff has asserted a violation of
a constitutional right at all.” Id. at 232. Because we conclude
that Coleman failed to allege the violation of a constitutional
right by Ellis, insofar as any of Hornsby's actions are imputed to
Ellis, the district court erred in failing to grant summary
judgment on the basis of those assumed facts.
9 A.
We review the denial of summary judgment de novo. Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992). Summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The
party seeking summary judgment bears the burden of showing that
there is an absence of evidence to support the non-movant’s case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After a proper
motion for summary judgment is made, the non-movant must set forth
specific facts showing that there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
We view facts in the light most favorable to the non-movant
and draw all reasonable inferences in her favor. Brothers v.
Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). If the non-movant
sets forth specific facts in support of allegations essential to
her claim, a genuine issue of material fact is presented, and
summary judgment is inappropriate. Id.
In order to state a claim of racial discrimination under the
Equal Protection Clause and § 1983, a plaintiff must demonstrate
that the governmental official was motivated by intentional
discrimination on the basis of race. See Washington v. Davis, 426
10 U.S. 229, 238-42 (1976); Vera v. Tue, 73 F.3d 604, 609 (5th Cir.
1996). “Proof of racially discriminatory intent or purpose is
required to show a violation of the Equal Protection Clause.”
Village of Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U.S. 252, 265 (1977).
Likewise, a cause of action for racial discrimination in the
making and enforcement of contracts, under § 1981, requires the
plaintiff to demonstrate intentional discrimination. General Bldg.
Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391 (1982);
National Ass’n of Gov’t Employees v. City Pub. Servs. Bd., 40 F.3d
698, 714 (5th Cir. 1994). Finally, to recover damages for a
conspiracy to deny individuals the equal protection of the laws
under § 1985 the plaintiff must demonstrate that the defendants
were motivated by an invidious discriminatory animus. Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971); Almon v. Sandlin, 603 F.2d
503, 505 (5th Cir. 1979).
Consequently, to assert a violation of a constitutional right,
Coleman must prove that Ellis intentionally discriminated against
her on the basis of race. Invidious discriminatory animus is the
sine qua non of a constitutional claim of racial discrimination.
In the instant case, however, this necessary prerequisite has not
been satisfiedSSat least, not on the basis of the district court's
assumed facts that form the only basis for this appeal.
The district court assumed, for purposes of summary judgment,
that Ellis did not discriminate intentionally against Coleman.
Indeed, the court expressly rejected any allegation that Ellis had
11 been motivated by an invidious discriminatory animus. Instead, the
court assumed that Ellis had acted not of her own volition, but
merely as Hornsby's unwitting (or unwilling) instrument.
We need not determine whether this factual assumption was
accurate; indeed, as we have previously discussed, we do not have
appellate jurisdiction to review the sufficiency of the evidence.
Jones, 115 S. Ct. at 2156; Nerren, 86 F.3d at 472. For purposes of
this interlocutory appeal, we are obliged to take, as given, the
facts the district court assumed, and our inquiry is limited to the
narrow question of whether those facts are sufficient to state a
claim under clearly established law. Behrens, 116 S. Ct. at 842;
Nerren, 86 F.3d at 472. Because the court assumed that Ellis did
not discriminate intentionally against Coleman, the necessary
prerequisite to a constitutional claim of racial discrimination was
not satisfied, and therefore the facts assumed were not sufficient
to state a claim of racial discrimination under clearly established
law.
Nevertheless, although it assumed that Ellis had not discrimi-
nated intentionally against Coleman, the court refused to grant
Ellis qualified immunity, solely because a genuine issue of
material fact existed as to Hornsby's motives. The court concluded
that Hornsby's alleged discriminatory intent could properly be
imputed to Ellis, his subordinate, for purposes of the qualified
immunity inquiry. This conclusion, which would create a rule of
respondeat inferior, was both unprecedented and erroneous.
Neither the district court nor Coleman cites any authority,
12 nor are we aware of any, holding that the discriminatory intent of
one official may be imputed to another for purposes of imposing
individual liability under the civil rights laws. To the contrary,
it is firmly established that individual liability under § 1983 may
not be predicated on the vicarious liability doctrine of respondeat
superior. Only the direct acts or omissions of government
officials, not the acts of subordinates, will give rise to
individual liability under § 1983.5 Insofar as the district court
assumed that Ellis had not discriminated intentionally against
Coleman, therefore, the necessary prerequisite to a constitutional
claim of racial discriminationSSinvidious discriminatory animusSSwas
absent, and Ellis was entitled to qualified immunity.
The rule of vicarious liability apparently adopted by the
district court and advocated by Coleman is more sweeping than is
the traditional doctrine of respondeat superior. Such an unprece-
dented rule of vicarious liability would impose individual
liability upon subordinates for the acts and omissions of superi-
ors, over whom they have neither control nor authority, thereby
creating a new liability theory of respondeat inferior. As the
Tenth Circuit, the only court previously to confront this novel
5 See, e.g., Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 452 (5th Cir. 1994) (en banc); Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597, 601 (5th Cir. 1988); Lopez v. Houston Indep. Sch. Dist., 817 F.2d 351, 355 (5th Cir. 1987), overruled on other grounds, Walton v. Alexander, 44 F.3d 1297, 1303 n.4 (5th Cir. 1995) (en banc); Kline v. North Tex. State Univ., 782 F.2d 1229, 1235 (5th Cir. 1986); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985). “Section 1983 will not support a claim based on a respondeat superior theory of liability.” Polk County v. Dodson, 454 U.S. 312, 325 (1981); see also Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 738 (1989) (holding that a school district may not be held vicariously liable for a violation of § 1981 solely on a theory of respondeat superior); Monell v. Department of Social Servs., 436 U.S. 658, 691 (1978) (holding that a municipal- ity may not be held vicariously liable for constitutional torts under § 1983 solely on a theory of respondeat superior).
13 theory of vicarious liability, has explained,
we know of no authority for imputing a principal’s discriminatory intent to an agent to make the agent liable for his otherwise neutral business decision. Similarly, while discriminatory practices of an agent may be imputed back to a principal to render the principal liable for its agent’s statutory violations, we have found no authority for imputing statutory liability in the opposite direction, from a culpable principal to an innocent agent.
Brownlee v. Lear Siegler Management Servs. Corp., 15 F.3d 976, 978
(10th Cir. 1994) (citation and footnote omitted); see also Haynes
v. Williams, 88 F.3d 898, 899-900 (10th Cir. 1996).
Therefore, in light of the federal courts' refusal to
recognize even traditional respondeat superior liability under
§ 1983, the district court erred in endorsing a new theory of
respondeat inferior liability. Accordingly, Ellis was entitled to
qualified immunity under the assumed facts.
IV.
Finally, we emphasize that our decision in this interlocutory
appeal is limited to the narrow legal proposition that a district
court may not impute the alleged discriminatory motivations of a
superior to a subordinate for purposes of the qualified immunity
analysis. We reaffirm that individual liability under § 1983 is
predicated on the acts or omissions of the respective individual
defendant, and the principles of vicarious liabilitySSwhether the
classic rule of respondeat superior or the novel rule of respondeat
inferiorSSare inapposite to constitutional claims of discrimina-
tion.
14 For purposes of this interlocutory appeal, we are obliged to
take, as given, the facts assumed by the district court, and to
determine whether they state a claim under clearly established law.
Therefore, we opine only that the district court erred in conclud-
ing that the alleged discriminatory motivations of Hornsby could be
imputed to Ellis for purposes of the qualified immunity analysis,
and we express no opinion as to whether the court erred in assuming
that Ellis did not intentionally discriminate against Coleman; nor
do we consider whether a genuine issue of material fact exists
concerning the allegations of intentional discrimination on the
part of Ellis.6 On remand, the district court is free to entertain
this alternate ground for denying qualified immunity.
V.
The order denying qualified immunity is REVERSED, and this
case is REMANDED with instructions to dismiss all claims pending
against Ellis in her individual capacity, unless it should
otherwise appear that qualified immunity is inappropriate.7
6 Indeed, as we have said, because such a determination would require us to evaluate the sufficiency of the evidence underlying the claim, we would not have jurisdiction to engage in such an inquiry on an interlocutory appeal from a denial of summary judgment on the basis of qualified immunity. See Jones, 115 S. Ct. at 2156; Cantu, 77 F.3d at 802-03. 7 Because the determination of whether a plaintiff has alleged a violation of a clearly established constitutional right is the first inquiry in the qualified immunity calculus, we need not consider Ellis’s remaining claims in this appeal. See Siegert, 500 U.S. at 227.
15 EMILIO M. GARZA, Circuit Judge, specially concurring:
The district court committed two fundamental legal errors.8
First, the “district court assumed, for purposes of summary
judgment, that Ellis did not discriminate intentionally against
Coleman,” without considering the evidence before it. By doing so
it violated a basic principle of summary judgment law: At the
summary judgment stage, we look at the summary judgment record in
the light most favorable to the non-movant, not the movant, in this
case, Ellis. See Williams v. Time Warner Operation, Inc., 98 F.3d
179, 181 (5th Cir. 1996).
Furthermore, by doing so, the district court passed over the
only material issue of fact before the district court: “[T]he sine
qua non of a constitutional claim of racial discrimination”))the
invidious discriminatory animus, if any, of Ellis. Coleman had “to
assert a violation of a constitutional right, [that is] Coleman
[had to] prove that Ellis intentionally discriminated against her
on the basis of race.” Instead, the district court held “that
Hornsby’s alleged discriminatory intent could properly be imputed
to Ellis, his subordinate.” Obviously, “[s]ummary judgment is
8 Accordingly, I agree with the majority that we have appellate jurisdic- tion to decide this interlocutory appeal. See Johnson v. Jones, ___ U.S. ___, 115 S. Ct. 2151, 132 L. Ed. 2d 238 (1995). I question, however, the majority’s continuous use of “assumed” facts because of the danger it may be misconstrued to pervert basic summary judgment law that requires a summary judgment record. See FED. R. CIV. P. 56(c). Clearly, in Jones, the Supreme Court was referring to the summary judgment record when it stated “the court of appeals can simply take, as given, the facts that the district court assumed when it denied summary judgment for that (purely legal) reason.” See Jones, 115 S. Ct. at 2159 (“[W]e hold 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
interrogatories, and admission on file, together with affidavits,
if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.’ Fed. R. Civ. 56(c).” Because I agree with the majority that
“a rule of respondent inferior [is] both unprecedented and
erroneous,” under Rule 56, it is also not a material issue of fact.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510, 91 L. Ed. 2d 202 (1986) (“As to materiality, the
substantive law will identify which facts are material.”).
For these reasons, I concur in the judgment of the court.
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