Tang v. State of Rhode

• Court: Court of Appeals for the First Circuit
• Decided: August 11, 1997
• Docket: 96-2320
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 96-2320



                                     RHODA TANG,



                                 Plaintiff, Appellee,



                                          v.



                 STATE OF RHODE ISLAND, DEPARTMENT OF ELDERLY AFFAIRS

             and MAUREEN MAIGRET and SUSAN SWEET, in their individual and

                                 official capacities,



                               Defendants, Appellants.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________



                              Cyr, Senior Circuit Judge,
                                   ____________________



                              and Boudin, Circuit Judge.
                                          _____________



                                 ____________________



            Rebecca Tedford Partington,  Assistant Attorney General, with whom
            __________________________

        Jeffrey B. Pine, Attorney General, was on brief for appellants.
        _______________

            Dennis J. Roberts  II with whom Law  Offices of Dennis J.  Roberts
            _____________________           __________________________________

        II was on brief for appellee.
        __


____________________



                                   August 11, 1997

                                 ____________________



BOUDIN, Circuit Judge.   In the district  court, Maureen
                         _____________



            Maigret and Susan  Sweet moved for summary  judgment, arguing



            that Rhoda Tang's  claim against them under 42  U.S.C.   1983



            was barred  by qualified immunity.   The district  court held



            that  factual  disputes precluded  summary  judgment on  this



            issue,  and Maigret  and Sweet  have  taken an  interlocutory



            appeal   to  this  court.    Under  governing  Supreme  Court



            precedent, we are obliged to dismiss the appeal on procedural



            grounds.



                 Tang, an Asian  American, has worked as a  public health



            nutritionist  at  the  Rhode  Island  Department  of  Elderly



            Affairs  since  1974.    In  her  view,  the  Department  has



            discriminated  against  her  for   many  years,  in   various



            respects, primarily on  account of her race.   The history of



            litigation includes a formal administrative charge by Tang of



            employment discrimination and  a settlement of the  matter in



            1987, and Tang's 1989 discharge and 1992 reinstatement, which



            followed union-initiated arbitration.



                 In 1996, Tang filed the present action in district court



            against  the Department,  Maigret  (former  director  of  the



            Department), and Sweet  (then the associate director).   Tang



            charged  that she had  been discriminated against  for racial



            and other  reasons in the  conditions of  her employment  and



            also  had been  subjected to  retaliation on  account  of her



            prior  complaint.   Her claims  were based  on Title  VII, 42


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U.S.C.     2000e-2 and 3, on 42 U.S.C.     1981 and 1983, and



            on counterpart provisions of Rhode Island law.



                 After some  preliminary skirmishing,  Maigret and  Sweet



            moved  for summary  judgment  as to  the  section 1983  claim



            against them on grounds of qualified immunity.  They conceded



            that there  was a clearly  established right to be  free from



            racial  discrimination.     But,   relying  upon   Harlow  v.
                                                               ______



            Fitzgerald,  457  U.S.  800,  819  (1982),  and  Anderson  v.
            __________                                       ________



            Creighton, 483 U.S. 635,  638-39 (1987), they argued  that an
            _________



            objectively  reasonable  person  would  not  think  that  the



            conduct attributed to them by Tang violated that right.  



                 Some  of  the incidents  cited  by Tang  as  examples of



            racial discrimination or retaliation would strike many people



            as tame  (for example, that  she was given too  many clerical



            tasks); others might be more  serious.  But Maigret and Sweet



            sought  to  narrow  the  focus  by  asserting that  each  was



            directly linked only to one  or two incidents.  Tang answered



            that  factual  issues,  including   the  defendants'  alleged



            discriminatory intent, precluded summary judgment.



                 In October 1996,  the district court filed  a memorandum



            and  order  concluding  that  "the  [individual]  defendants'



            motion for qualified immunity must  be and is hereby deferred



            until completion of the trial  of the plaintiff's case."  The



            court  declined to "detai[l] the allegations the parties have



            made" but  explained: "It suffices  to say that I  agree with


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plaintiff's counsel that  the vast majority of the  facts are



            in dispute."  This appeal followed.



                 Although  Tang defends the district court's order on the



            merits, she also says that we have no authority to review the



            district court's order.   The objection, couched  in language



            taken from a recent Supreme  Court case, is that "a defendant



            entitled  to  invoke  a qualified  immunity  defense  may not



            appeal a  district court  summary judgment  order insofar  as



            that order determines whether or not the pretrial record sets



            forth a `genuine issue of fact  for trial.'"  See Johnson  v.
                                                          ___ _______



            Jones, 115 S. Ct. 2151, 2159 (1995).
            _____



                 The  Supreme Court  had  earlier  held  in  Mitchell  v.
                                                             ________



            Forsyth, 472 U.S. 511, 530  (1985), that despite the ordinary
            _______



            requirement  of finality, a  denial of qualified  immunity on



            legal grounds is immediately  appealable under the collateral



            order doctrine.  But in Johnson, it narrowed this opportunity
                                    _______



            by  saying that  an  interlocutory appeal  from  a denial  of



            immunity  would not  be permitted  where  the district  court



            found  that a  genuine issue  of  material fact  precluded an



            immediate grant of  qualified immunity.  115 S.  Ct. at 2156-



            58.  Accord Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996).
                 ______ _______    _________



                 In  construing these cases,  this court has  spelled out



            what is  implicit in Johnson,  namely, that it does  not help
                                 _______



            the official appealing a denial of immunity to argue that the



            district  court erred in  finding a  material issue  of fact.


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Diaz  v. Diaz  Martinez, 112  F.3d  1, 4-5  (1st Cir.  1997);
            ____     ______________



            Stella  v. Kelley, 63 F.3d 71, 77-78  (1st Cir. 1995).  True,
            ______     ______



            such  an error can be described as  an error of law.  But, as



            the  Supreme  Court  made  clear,  Johnson's  limitation   on
                                               _______



            immediate  review rests primarily  on a prudential  desire to



            avoid  bringing  evidentiary  disputes to  the  appeals court
                             ___________



            except as  part of a final judgment.   Johnson, 115 S. Ct. at
                                                   _______



            2156-58.



                 In  this case,  the  district  court  did  not  identify



            specific  factual issues  or  explain  its  ruling,  but  its



            reasoning probably  lay along  one or  both of  two different



            lines:  that disputed  incidents trivial in  themselves might



            add up to something  more sinister as part  of a pattern,  or



            that  some of  the  incidents (such  as  the later  withdrawn



            discharge  of Tang in 1989)  might not be  so trivial at all.



            Neither  theory is impossible  in the  abstract.   See, e.g.,
                                                               ___  ____



            Carter v. Rhode Island, 68 F.3d 9, 13 (1st Cir. 1995).
            ______    ____________



                 Whether  the evidence adduced by Tang created a material



            issue of fact under summary judgment standards is a different



            question; to  decide it,  we would have  to describe  in some



            detail  the events  cited by  Tang and  the inferences  as to



            defendants' intent  that might, or  might not, be  drawn from



            the episodes alleged.   But this is the  very type of factual



            dispute  that  Johnson  holds  to  be  premature  so  far  as
                           _______


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appellate  review is concerned.  Right or wrong, the district



            court's ruling is not subject to immediate appeal.  



                 The defendants counter by saying that  subjective intent



            is irrelevant to  qualified immunity.  They  concede arguendo
                                                                 ________



            each  of the  few incidents  directly  involving them  (e.g.,
                                                                    ____



            Maigret's  allegedly   inadequate  investigation   of  Tang's



            complaint that  another department  employee demanded  to use



            Tang's computer although other machines were available).  But



            drawing upon the Harlow-Anderson objective  test of qualified
                             ______ ________



            immunity, they  say that  no reasonable  person could  regard



            these actions as unlawful discrimination.



                 We  think that  the Harlow-Anderson objective  test does
                                     ______ ________



            not  automatically resolve  a qualified  immunity  defense in



            favor   of  the  defendant  in  a   case  of  alleged  racial



            discrimination or retaliation.   The essence of  such claims,



            or  at least one  standard version, is  that official actions



            that  might  otherwise  be  defended  as   reasonable  become



            illegitimate when taken out of  racial bias or in revenge for



            a prior complaint.   See Alexis v. McDonald's  Restaurants of
                                 ___ ______    __________________________



            Mass., Inc., 67 F.3d 341, 354 (1st Cir. 1995) (citing cases).
            ___________



            To employ a wholly objective test would wipe out many, if not



            most, of these claims.



                 The  objective test focuses on the reasonableness of the



            official's conduct independent of motive.  It is rarely going



            to be manifestly  unreasonable, judged apart from  motive, to


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assign  particular  tasks  to  an  employee,  move  her  file



            cabinet, alter  her parking  arrangements or  do most  of the



            things  of  which Tang  complains.   But  because  of special



            constitutional  or statutory  protections,  some motives  can
                                                        ____



            convert relatively minor slights into causes of action.   Cf.
                                                                      ___



            Rutan v. Republican Party of Illinois, 497 U.S. 62,  75 & n.8
            _____    ____________________________



            (1990).



                 An unresolved  tension  exists  between  such  specific-



            intent  torts  and  the  objective Harlow-Anderson  qualified
                                               ______ ________



            immunity test.1   That test was designed to  meet, not claims



            of  racial  bias  or  retaliation,  but  rather   ill-founded



            allegations  that an official action was "malicious" or taken



            "in  bad  faith"--characterizations that  defeated  qualified



            immunity at common law.   Prosser and Keeton on Torts    132,
                                      ___________________________



            at 1059-62 (5th ed. 1984).  In all events, the circuit courts



            have almost uniformly  refused to apply a  strictly objective



            test of qualified  immunity in racial and  retaliation cases.



            See Broderick v. Roache, 996 F.2d 1294, 1298 (1st Cir. 1993);
            _____________    ______



            Crawford-El, 93 F.3d at 817 (citing cases). 
            ___________



                 The  defendants  strongly  suggest that  the  failure to



            allow an appeal now, in a  case like this one, will  undercut



            the protection that qualified immunity is supposed to give to



                                
            ____________________



                 1The Supreme Court may clarify matters next fall when it

            confronts a qualified immunity defense offered to a charge of

            retaliatory  motive.   Crawford-El v.  Britton,  93 F.3d  813
                                   ___________     _______

            (D.C. Cir. 1996)  (en banc), cert. granted,  65 U.S.L.W. 3817
                                         _____________

            (1997).



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a  government official  in  a  weak case  not  only to  avoid
                                    ________________



            liability  but to  avoid trial  itself.   Of course,  nothing



            prevents  a district court from granting summary judgment for



            the defendants where proof of  a racial or retaliatory motive



            is very  thin.  But  this does not help  government officials



            seeking an early  exit where the  district court thinks  that



            factual issues remain, for, in that event, Johnson still bars
                                                       _______



            an immediate appeal.



                 Johnson involved a factual dispute  about what occurred,
                 _______



            not an issue of motive,  and its full implications for motive



            cases may not have been  entirely apparent.  See Johnson, 115
                                                         ___ _______



            S. Ct.  at  2154, 2158.    Given the  policies  set forth  in



            Harlow, 457  U.S. at 817-18,  and Anderson, 483 U.S.  at 641,
            ______                            ________



            officials arguably  do need  some special  protection against



            charges  of improper motive, which  are easily made and which



            may be supported simply by an alleged remark of the defendant



            made when  only the plaintiff  was present.  The  problem for



            officials facing such lawsuits is very real.



                 In a few circuits, it appears that courts have responded



            by  squeezing   Johnson  a   bit  and  effectively   granting
                            _______



            interlocutory review  of denials of qualified  immunity based



            on  alleged factual disputes  about intent; but  this circuit



            and  a number  of others  have resisted  that course.2   More



                                
            ____________________



                 2Compare  Walker  v.  Schwalbe, 112  F.3d  1127, 1131-32
                  _______  ______      ________

            (11th Cir. 1997) and Blue v.  Koren, 72 F.3d 1075, 1083-84  &
                             ___ ____     _____

            n.6  (2d Cir.  1995) (exercising  pendent jurisdiction)  with
                                                                     ____



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inventively,  the District  of  Columbia  Circuit, which  had



            developed  a  heightened pleading  standard  for  such motive



            claims, recently  abandoned it in favor of  imposing a "clear



            and  convincing evidence" standard of proof.  Crawford-El, 93
                                                          ___________



            F.3d at 818, 823.



                 Because  the  Supreme  Court   has  granted  review   in



            Crawford-El,  an answer to  the quandary may  be forthcoming,
            ___________



            but we need not hazard our  own guess about the outcome.   In



            the  present case,  Maigret and  Sweet  did not  ask for  any



            special  evidentiary  standard  to be  used  in  the district



            court--but  merely   for  summary   judgment  granting   them



            qualified immunity.  The district court denied it because  of



            a  perceived factual dispute,  and under Johnson  that ruling
                                                     _______



            cannot be reviewed on interlocutory appeal.



                 Appeal dismissed. 
                 ________________


____________________



            Berdec a-P rez  v. Zayas-Green, 111  F.3d 183, 184  (1st Cir.
            ______________     ___________

            1995) and  Chateaubriand v.  Gaspard, 97  F.3d 1218,  1223-24
                  ___  _____________     _______

            (9th Cir. 1996) and Shinault v. Cleveland County Bd., 82 F.3d
                            ___ ________    ____________________

            367, 370-71  (10th Cir. 1996),  cert. denied, 117 S.  Ct. 740
                                            ____________

            (1997).



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