USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1082

SHEREE A. CARTER,

Plaintiff, Appellee,

v.

STATE OF RHODE ISLAND, ET AL.,

Defendants, Appellants.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

__________________________

____________________

Cyr, Boudin and Lynch,

Circuit Judges.
______________

____________________

James R. Lee, Assistant Attorney

_____________

General, with whom

Jeffrey
_______

Pine, Attorney General, was on brief for appellants.

____
George Carvalho,
________________

with whom

Babcock were on brief for appellee.

_______

Patrick J. Quinlan
___________________

and

George
______

____________________

October 18, 1995

____________________

CYR, Circuit Judge.

CYR, Circuit Judge.
_____________

Appellee Sheree A. Carter, a state

prison guard, filed suit against the State of Rhode Island, eight

of her supervisors or superior officers, and her

race and

among the

gender

Four

individual

eight individual defendants who

locutory appeal,

their

discrimination.

challenge a

"qualified immunity"

district

defenses

union, alleging

defendants,

initiated this inter-

court order

at summary

disallowing

judgment.

We

dismiss their appeal, for lack of appellate jurisdiction.

I
I

BACKGROUND1
BACKGROUND
__________

The Rhode Island Department of Corrections hired Carter

as

a prison

guard in October

1990.

Her

superior officers and

supervisors embarked on a prolonged campaign of workplace harass-

ment in

April 1991.

The work

environment was

marked by

(i)

several disciplinary measures against Carter based on infractions

for

which defendants

(ii) especially

had never

disciplined white

undesirable or

male guards,

dangerous work assignments

made

without regard to her seniority and class ranking, and failure to

accord "serious consideration" to

(iii)

repeated

racial

directed against Carter

home, and

slurs

and

in telephone

in graffiti posted

failure to address her

her application for promotion,

sexual

threats

calls at work

at or near her

anonymously

and at

her

work station, (iv)

repeated complaints about ongoing harass-

____________________

to

1The material facts are related in the light

most favorable

Carter, the party resisting summary judgment.

See Hegarty v.
___ _______

Somerset County, 53 F.3d 1367, 1368 n.1 (1st Cir. 1995).

_______________

ment,

amounting

comments to

to

the press

implicit condonation,

relating to Carter's

and

(v)

defamatory

discrimination com-

plaints.

Carter commenced

August 1993,

suit

alleging, inter
_____

in federal

district

alia, that defendants

____

court

in

violated 42

U.S.C.

1983 by

from race and

teenth

infringing her constitutional right to

gender discrimination

Amendments

to

the

under the

United States

be free

Fifth and

Four-

Constitution.2

She

____________________

2Only the

ruling

denying summary

claims is before us on appeal.

alleged civil

and

the

1983

An amended complaint additionally

rights claims under

discrimination only)
____

judgment on

42 U.S.C.

1985, pendent

1981 (race-based

state-law claims under

the Rhode Island Whistleblower Protection Act, see R.I. Gen. Laws
___

28-14-18 (1994), and common law tort claims for defamation and
intentional infliction of emotional
allowed to amend

the complaint

claim, see 42 U.S.C.

___
evidence.

distress.

Later, Carter was

again by including

VII

2000e-2(a)(1), to conform to the proffered

Defendants moved for

summary judgment on all

based on their qualified immunity defenses to the

and

a Title

claims,

1981,

1983

to all

eight

1985 claims.
The

district court

denied

summary judgment

defendants on the Title VII claims, finding trialworthy issues of

material fact.
0447B,

See Carter
___ ______

v. State of Rhode Island, No.

_______________________

slip op. at 6-7, 18-20

Recommendation).

The

93-

(D.R.I. Nov. 9, 1994) (Report and

court also

dismissed the

1985 claims

against

all eight

sufficient
existence

Vose,

because Carter

evidence to generate
of

except for

defendants

a trialworthy

a "conspiracy."

Id.
___

at

state-law claims.

adduce

issue as

to the

15-17, n.47.

the defamation claim against

the court denied all

failed to

Finally,

"supervisory" defendant

motions for summary

judgment on the

Id. at 25-27.
___

Though not at issue in this interlocutory appeal, we note an

apparent inconsistency

between the district court

order and the

memorandum explaining its rationale; viz., there is no foundation

in

the memorandum and order for the district court's decision to

dismiss the
dants.

1981 claims

against the four "supervisory"

The court dismissed the

1981 claims against the "union"

___ _____

defendants because Carter had adduced

__________
the union
_____

intentionally

member's complaints

workers' compensation.
is no discussion

of the

insufficient evidence that

or purposefully

Carter by selectively invoking a union

a union

Id.
___

defen-

discriminated

policy not to investigate

while the complainant

at 11-13.
1981 claims

against

On the

is receiving

other hand, there

against appellants,
_______ __________

who

sought injunctive relief, compensatory

attorney fees.

and punitive damages, and

Defendants moved for summary judgment, contending

that Carter had failed to state

a claim upon which relief may be

granted, see Fed. R. Civ. P. 12(b)(6), (c), and asserting "quali___

fied immunity" from suit.

The

district court

categorized the

eleven individual

defendants in three groups:

"Union" Defendants:
_________________
of

Correctional

Rhode Island Brotherhood

Officers

(Union);

William

Bove (Union president); Kenneth Rivard (Union

grievance chairman);

"Supervisory" Defendants: George A. Vose, Jr.

_______________________
(Director of Rhode Island Department
rections);
Carter's

Captain

Walter Whitman

supervisor);

tridge (Deputy

Captain

of Cor(Warden;

Thomas

Par-

Warden; Carter's supervisor);

Barry Levin (the Department's

Chief Supervi-

sor of Employee Relations); and

"Superior Officer" Defendants:

______________________________
Ronald

Le

Captain

Clerc;

Peter

Captain

Germani

and

Lieutenant

Kenneth

Ahearn;

Captain

Ronald

____________________

moved

for summary judgment

on the

1981 and

qualified immunity grounds only, and whose

1983 claims on

1981 liability is in

no sense derivative of, nor dependent upon, the union defendants.

Nevertheless,
"superior

officer"

dismissal

of the

insufficient
hand,

the

defendants

does

the

1981 claims
appear to

against the

flow

from

the

1983 claims against those defendants based on

evidence of

assuming

judgment to

dismissal of

the

discriminatory intent.

district

court

four "supervisory"

On

the other

correctly

denied

summary

defendants

on the

1983

claims,

we discern

against

these

no basis

for dismissing

"supervi-sory"

defendants.

immunity may be available under

denied
here,
____

the pretrial
the court

subjective

state

Although

immunity defense

trialworthy issues

of mind,

1981 claims

qualified

1981, defendants normally

benefits of an

finds

the

i.e.,

where, as
__

pertaining to

discriminatory

are

intent.

their

See
___

Alexis v. McDonald's Restaurants of Mass., Inc.,

F.3d
,
______
_____________________________________ __
____ __
(1st Cir. 1995) [No. 94-1554, slip
10,

1995)].

op. at 13, n.7 (1st Cir. Oct.

Accordingly, the parties should explore this appar-

ent inconsistency on remand.

Brodeur (Carter's superiors).3

The

present

district

appeal dismissed

"superior

be

first

the

court

ruling

section 1983

officer" defendants because

free from undesirable

pertinent

to

the

claims against

the

Carter's alleged right to

or dangerous

work assignments

is not

protected under the Fourteenth Amendment, and the actions charged

against defendants

discriminatory

0447B,

could not

intent.

slip op.

Recommendation).

at

And,

support a reasonable

Carter v. State of Rhode Island, No. 93______

_____________________

23-24 (D.R.I.

Nov.

as to defendant

issued a

public reprimand

of Carter,

that the

allegation

white

subjected

to

inference of

that

similar reprimands

foundation for an inference

9, 1994)

Le Clerc, who

the district

male prison

did

(Report

not

and

allegedly

court found

guards

provide an

that Le Clerc was motivated

were

not

adequate

by race

or gender

discrimination.

section 1983

Accordingly, the

claims against

court dismissed the

the four "superior

officer" defen-

dants.4

Second, the court ruled

that Carter had stated action-

____________________

3After

the

motions

pursuant to 28 U.S.C.

for

summary

636(b)(1)(B),

judgment

were

the district court adopted

the report and recommendation issued by a magistrate

days prior to
report and

oral argument

recommendation is

referred

in this appeal.

judge three

Accordingly,

cited throughout, as

the

the district

court ruling.

4Although
dants

are

eight "superior officer" and "supervisory" defen-

named in

the notice

of

appeal, the

order granting
________

partial summary judgment for the "superior officer" defendants is

not immediately appealable, as it has not been certified pursuant

to Fed.
generally
_________
1993).

R. Civ. P.

54(b).

See Hegarty, 53
___ _______

F.3d at

1372; see
___

Kersey v. Dennison Mfg. Co., 3 F.3d 482, 486 (1st Cir.

______
_________________

able section

1983 claims

against the four

"supervisory" defen-

dants, by alleging that she caused copies of her complaints to be

sent to each

thereby

allegations of

treatment

intent
______

in

establishing that they

ongoing race and gender

knew about
____

her

harassment and disparate

thus demonstrating a trialworthy dispute as to their

failing

to redress

her

allegations.

Id. at
___

23.

Finally,

the district

defendants

because

by

were not

court ruled

entitled

that the

to qualified

four "supervisory"

immunity from

suit

the right to be free from race and gender discrimination

government

before 1990.

officials

had

Id. at 24-25.
___

defendants [hereinafter:

been "clearly

established"

long

Thus, only the four

"supervisory"

"appellants"] presently

challenge the

district court summary judgment ruling rejecting their "qualified

immunity" defenses.

See supra notes 2 & 4.

___ _____

II
II

DISCUSSION
DISCUSSION
__________

government

official

is not

entitled

to qualified

immunity

from suit "if the

right asserted by

the plaintiff was

`clearly established' at the time of its alleged

[and] a
___

reasonable official

should have understood that

established right."

Cir. 1990)

(emphasis

The

the challenged conduct violated that

___ __________ _______

v.

Forsyth, 472
_______

district court

constitutional right to be

is

same circumstances
____ _____________

Burns v. Loranger, 907 F.2d 233, 235-36 (1st

_____
________

(citing Mitchell
________

added).

situated in the
__ ___

violation . . .

so well established and

U.S. 511

determined that

(1988))

"[t]he

free from [] invidious discrimination

so essential to

the preservation of

our

constitutional

order

that

charged with knowledge of it."

all public

officials

must

be

Carter, No. 93-0447B, slip op. at

______

25 (D.R.I. Nov. 9, 1994).

Appellants contend

district

court should have

matter of law, the

in

VII

case.

evidentiary

brief

proceeded to consider

that

the

whether, as a

particular conduct of each individual

dant was objectively reasonable.

to Harris
______

their opening

defen-

They rely heavily on an analogy

v. Forklift Sys., Inc., 114 S. Ct. 367 (1993), a Title

___________________

Appellants

argue that

Harris
______

prescribes

minimum

standards for establishing the "objectively abusive"

conduct needed to support a

lar defendant

harbored an

they

the facially

see it,

conduct

reasonable inference that a particu-

invidious discriminatory intent.

As

innocuous or

objectively reasonable

as well as

the "superior officer"

in which appellants,

defendants, are alleged to have engaged (e.g., defendants "glanc-

[ed]" at

Carter during roll

call; refused

to let her

drive an

automobile without a license) falls far short of the "objectively

abusive

conduct" required

explicit

gender-based insults,

coercion against

lants

say, by

insufficient

"superior

under Harris
______

a subordinate).

the district

to support

sexual

(viz., repeated

innuendo,

This is

court ruling

threats,

and

demonstrated, appel-

that the

reasonable inference

officer" defendants harbored

use of

evidence is

that the

four

a discriminatory intent.

See
___

Carter,
______

No. 93-0447B,

1994); see also supra

___ ____ _____

they

were entitled

slip op.

note 4.

at

23-24 (D.R.I.

Appellants therefore

to qualified

immunity because,

Nov. 9,

insist that

viewing the

disputed evidence most favorably

situated in

to Carter, reasonable officials

their circumstances should not

___

have understood that

their conduct violated Carter's established right to be free from

race or gender discrimination.

See Burns, 907 F.2d at 235-36.

___ _____

While this interlocutory appeal was pending, the United

States

Supreme Court decided Johnson

_______

(1995).

Displacing our

locutory

appeals from

virtually all

immunity

defenses

summary

Campbell,
________

at

v. Jones, 115
_____

S. Ct. 2151

longstanding precedents allowing

863 F.2d 124, 128

rulings denying

judgment, see,
___

(1st Cir. 1988),

e.g.,
____

immunity
court's
that

entitled to invoke

defense, may not

summary

order

judgment

determines

pretrial record sets forth a

of fact for trial.

a qualified

appeal a district
order insofar

whether or

qualified

Unwin
_____

v.

the Supreme Court

held that

a defendant,

inter-

not

as
the

'genuine' issue

Johnson, 115 S. Ct. at 2159.

_______

Recently, this court summarized the

Johnson message:
_______

Thus,

on the

one hand,

pretrial rejection of
immunity defense

district court's

a proffered

qualified

remains immediately appeal-

able as a collateral order to the extent that

it

turns on

standing

a pure

issue of

law, notwith-

the absence of a final judgment. On

the other hand,

rejection of a

a district court's

pretrial

qualified immunity defense is

not immediately appealable to the extent that

it turns on . . . an issue of fact . . . . In
such a

situation, the movant

entry of final judgment before

must await the

appealing the

adverse ruling.

Stella v.
______

Town of Tewksbury,
_________________

__ F.3d

___, ___ (1st

[No. 95-1223, 1995 U.S. App. LEXIS 23942, at *7-8 (1st

23, 1995)].

Cir. 1995)

Cir. Aug.

Johnson
_______

intensive

delays

emphasized

inquiries

to

that

appellate

and imprudent use of scarce

appellate

court may have to

pretrial record

tions such

routinely

courts

2158 (emphasis added).

entails

fact-

significant

judicial resources, since an

wade through a huge, underdeveloped

to resolve especially

as a defendant's

allocating

"intent."
______

"nebulous" factual
_______

Johnson,
_______

115 S.

ques-

Ct. at

Appellants'

characterize

based"

reaction

to

Johnson
_______

is

to

mis-

the summary judgment ruling in this case as a "law-

rather than

ment.

first

Johnson
_______

a "fact-based"

explicitly

denial of

directs that

"a

summary judg-

district

court's

pretrial rejection of a qualified immunity defense is not immedi-

ately appealable to the extent that it turns on . . . an issue of

fact . . .

App.

."

LEXIS

Johnson,
_______

Stella,
______

23942, at

115 S.

Ct.

__ F.3d at ___

*7-8 (1st

at 2159).

Cir.

[No. 95-1223, 1995

Aug. 23,

Determining the

absence of discriminatory "intent" based

U.S.

1995)] (citing

presence

or

on evidentiary proffers

at summary judgment entails a quintessential

factual assessment,
_______

see Broderick v. Roache, 996 F.2d 1294 (1st Cir. 1993) (normally,
___ _________
______

1983 defendants

summary

judgment

are

not entitled

where

qualified

factual determination

as to

to

brevis disposition

immunity

defense

their subjective intent),

turns

on

on

which is

part and parcel of the "merits" dispute on the claims brought

by

Carter in this case.

Second,

367

appellants contend, citing

Harris, 114 S. Ct.

______

(1993), that their conduct, as alleged, was not "objectively

abusive"

as a matter of law
__ _ ______ __ ___

egregious to support a

since it was not sufficiently

reasonable inference that appellants were

motivated by race or gender discrimination:

[Such a standard]
[worker] to
male
to

would permit any

allege anything against

________

[supervisor] and force

a jury

minority

trial.

a white

that white male

For example,

a minority

could
allege

a violation

of the

equal protection

clause because a white supervisor said hello,

one time, to a
to the

white worker before saying it

minority worker.

obviously allege the

established

right [to

discrimination),

but

That

lawsuit would

violation of a
be free
it

would

clearly

from] racial
not

allege

facts that violated that right.

_____

Supplemental

Brief for

Appellants

at 4.

Given the

evidence

adduced by Carter at summary judgment, see Fed. R. Civ. P. 56(e),

___

we reject this artificial characterization as well.

For summary

dispute must be

viewed in

The district court

each

judgment purposes, all evidence in genuine

the light most

found that Carter

appellant had

been given

favorable to

adduced evidence that

written

notice of

continuing campaign of workplace harassment and

ment aimed

at her, see
___

supra pp.
_____

authority to redress her

so.

In

this factual

Carter.

a pervasive,

disparate treat-

2-3, (ii) each

appellant had

complaints, and (iii) all failed

setting, Harris does

______

(i)

appellants no

to do

good,

even as an analog.5

For one thing, contrary

supra

pp. 6-7,

the Harris

to appellants' contention, see

___

Court not

only did

not

purport to

_____

______

____________________

5We

need not

test the

assumption implicit

in appellants'

analogy; viz., that Harris, a sexual harassment case, defines the

______
boundaries of racial harassment claims as well.

10

prescribe

abusive

an evidentiary threshold for establishing "objectively

conduct," it

explicitly

earlier decision "present[ed]

noted that

merely because

an

some especially egregious examples

of

harassment, [it did] not mark the [lower] boundary of what is

actionable."

Harris, 114
______

S. Ct

at 371.

Moreover,

the Court

noted that

whether
sive"

an environment is "hostile" or "abucan be determined

only by

looking at
__

all the circumstances. These may

___ ___ _____________

include the

frequency of the discriminatory

_________

conduct; its

severity; whether it is
________
ing or humiliating,
___
___________

or a mere

terance; and whether

feres with an

physically threaten__________ _________

offensive ut-

it unreasonably

inter-

employee's work performance. .

. . [N]o single factor is required.

Id. (emphasis
___

added).

Carter, relating

this stage

The

to conduct

factual allegations

and context,

attested to

by

are presumed true

at

in the case, see supra pp. 2-3, and must be evaluated

___ _____

by

the

ultimate factfinder

with a

view

to their

support for a reasonable

inference on the "nebulous"

discriminatory "intent."

Thus,

precisely the

adequacy as

element of

her factual allegations call for

type of fact-intensive inquiry

that Johnson coun_______

sels against, as an inappropriate judicial exercise on interlocu-

tory review.

Furthermore, the "conduct" we must deem established for

summary

judgment purposes in this case cannot be confined to the

straitjacket designed for it by appellants (viz., "a white super-

visor said hello, one time, to a white worker before saying it to

___ ____

the minority worker").

understates

the

Rather, their

allegations

actually

11

hypothetical substantially

attested

to

by Carter.

Consequently, we need not address their artificial construct.

Carter

racial and

district

We

for example,

gender-based epithets were directed

that appellants

tion.

expressly attests,

condoned this harassment by

can discern

court ruling

no permissible

that

against her, and

their knowing inac-

ground for

there was a

that repeated

treating the

trialworthy issue of

fact as to whether appellants harbored a discriminatory intent

as

an

immediately

appealable

law-based
___

decision

within

the

meaning of Johnson, 115 S. Ct. at 2159.6

_______

Johnson announces a jurisdictional rule

_______

signaling a

new day in the First Circuit, see Stella, __ F.3d at ___ [No. 95___ ______

1223, 1995 U.S. App. LEXIS 23942, at *9 (1st Cir. Aug. 23, 1995)]

and

not one

to be

undone

by recasting

fact-based rulings

denying summary judgment on qualified immunity defenses into law-

based "collateral

orders" immediately appealable under

Beneficial Indus. Loan Corp.,

____________________________

337 U.S. 541 (1949).

Cohen v.
_____

See Elliott
___ _______

v. Thomas, 937 F.2d 338, 341 (7th Cir. 1991) ("By sleight of hand
______

[defendants] can turn any defense on the merits into a defense of

qualified immunity."),

cert. denied, 502 U.S. 1121

_____ ______

(1992).

The

Johnson rule would be undermined

_______

ed, see, e.g., Johnson, 115 S.

___ ____ _______

"danger of

denying justice

its important aims frustrat-

Ct. at 2158 (noting, inter

_____

by delay")

alia,
____

were defendant

offi-

____________________

6Likewise, the
trialworthy
link"

district court's ruling

-- that there

is a

issue of fact as to the existence of an "affirmative

between

appellants' acts

or

omissions

and the

alleged

deprivation of civil rights, see, e.g., Figueroa v. Aponte-Roque,

___ ____ ________
____________
864

F.2d 947,

953

(1st Cir.

appealable law-based decision.

1989)

is

not

an immediately

Johnson, 115 S. Ct. at 2159.

_______

12

cials,

spurred

by the

prospect of

delay

and the

leverage it

occasions, permitted to contrive insubstantial "issues of law" as

grounds for interlocutory review.

III
III

CONCLUSION
CONCLUSION
__________

As

Johnson
_______

district court

qualified

order

precludes

denying summary

immunity defenses,

that there was a

interlocutory

founded

judgment

review

on

of

the

appellants'

on the

fact-based ruling

trialworthy issue of fact as

to whether appel-

lants acted with discriminatory intent, their appeal is dismissed

_________________________

for lack of appellate jurisdiction, with costs to appellee.

__________________________________ ____ _____ __ ________

SO ORDERED.
SO ORDERED.
__ _______

13