Opinion
Civil Action No. 1:96cv17-D-D
March 31, 1997
MEMORANDUM OPINION
Presently before the court is the motion of the defendants Holly Springs, Mississippi and Billy Hasty for the entry of summary judgment on their behalf. Finding that the motion is partially well taken, the court shall grant it in part and deny it in part.
In ruling on a motion for summary judgment, the court is not to make credibility determinations, weigh evidence, or draw from the facts legitimate inferences for the movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson. 477 U.S. at 255. The court's factual summary is so drafted.
In 1993, authorities arrested Holly Springs Police Chief Anthony Clark Marion for various crimes committed within the scope of his duties as Chief of Police. After three separate trials before the undersigned, Marion was ultimately convicted. United States v. Marion, et al., Criminal Cause No. 3: 94cr036-D-D (N.D. Miss. Mar. 28, 1995) (Davidson, J.) (Judgment of Conviction). As a result of his arrest and subsequent prosecution, the City of Holly Springs terminated Marion's employment and began a search for a new chief of police. The plaintiff Eddie Fioretti, a longtime police officer of the city, served as acting chief of police while the city interviewed for Chief Marion's replacement. Marion is an African-American, and Fioretti is Caucasian. While Fioretti ran the department during the interim between Marion's departure and the eventual hiring of defendant Billy Hasty as the new Chief of Police, two of the city's aldermen spoke with Fioretti about the decision to choose a new chief:
Before the Board voted on a new Police Chief, I was told by Garrie Colhoun, Alderman,
that he wanted Billy Hasty as the next Police Chief. Nancy Hutchens, Alderman, told me she was leaning towards Henry I. Chapman as the next Police Chief. Both of them told me that they did not want another black as Police Chief.
Exhibit "A" to Plaintiffs' Response, Affidavit of Eddie Fioretti, ¶ 4. The Board of Alderman eventually hired Billy Hasty, a Caucasian, as the new Chief of Police. However, they also created a new position in the department — Assistant Chief of Police. The Board hired plaintiff Lenwood Smith, an African-American, to fill this post. The working relationships between Chief Hasty, Fioretti and Smith quickly deteriorated.
Supposedly, a "deal" was struck concerning the racial composition of city employees:
The deal was that the City, due to the pressures that they were under to hire Hasty as the chief, was to let them go ahead and hire Hasty as the chief, give me the assistant chief's job, and let — the City would hire a black EEOC officer and a black park director.
Exhibit "C" to Plaintiffs' Response, Deposition of Lenwood Smith, p. 77. Further, the composition of the police department was presumably split for an additional reason:
[Alderman] Gary Calhoun — stated in the board meeting, he said — and I quote — I thought when we hired you, you was going to take care of the black neighborhoods and Hasty was going to take care of the white neighborhoods.
Exhibit "C" to Plaintiffs' Response, Deposition of Lenwood Smith, p. 114.
It was not long before I realized there were going to be problems. When measuring out a possible office for Assistant Chief Smith, Chief Hasty told me not to do anything for that black ass nigger he's not going to be here that long. Afterwards, Chief Hasty frequently referred to Assistant Chief Smith as a nigger.
Chief Hasty told me to stop babying them Goddamned nigger police officers. Several times he told me not to do anything for Assistant Chief Smith because he was going to get rid of him.
Exhibit "A" to Plaintiffs' Response, Affidavit of Eddie Fioretti, ¶¶ 7, 11 (text as in original).
Other race-based frictions also arose between Chief Hasty and Fioretti. For example:
Chief Hasty also told Assistant Chief Smith and myself that he did not want blacks and whites fucking. When I told Chief Hasty it was not our business he became infuriated with me. From that point on, Chief Hasty's attitude towards me changed for the worse as he became hosfile towards me.
Exhibit "A" to Plaintiffs' Response, Affidavit of Eddie Fioretti, ¶ 8 (text as in original). Chief Hasty later made false accusations against Fioretti before the Board of Aldermen. The conflict between Hasty and Fioretti eventually came to a head after a conversation Fioretti had with Smith:
Lenwood told me at McDonald's that morning that — to be careful, and that there had been a special board meeting called. And I believe that it was supposed to have happened on a Monday, and that board meeting was about me, and that Chief Hasty had gone to the Mayor and the board and had a special meeting, and was told things about me and all, and it was going to — — looked like they were going to fire me.
Exhibit "B" to Plaintiffs' Response, Deposition of Eddie Fioretti, p. 29. Soon after, Fioretti resigned his position with the Holly Springs Police Department. On September 7, 1994, the Board voted to terminate Smith's employment as Assistant Chief of Police. This cause followed.
The plaintiffs filed their complaint with this court on January 19, 1996, alleging various causes of action on behalf of both plaintiffs. On January 28, 1997, the defendants filed with this court a motion for summary judgment on the plaintiffs' claims. As discussed below, the plaintiffs confess many of their claims, and this matter is primarily before the court at this juncture on the claim of the plaintiff Fioretti that he was constructively terminated from his employment in violation of his First Amendment right of freedom of association, and upon plaintiff Smith's claim that he was terminated from his employment in violation of his Fourteenth Amendment right to equal protection under the law.
Discussion
Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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 carries the burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once a properly supported motion for summary judgment is presented, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986);Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir. 1994). "Where the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Federal Sav. Loan Ins. v. Krail, 968 F.2d 500, 503 (5th Cir. 1992). The facts are reviewed drawing all reasonable inferences in favor of the party opposing the motion. Matagorda County v. Russel Law. 19 F.3d 215, 217 (5th Cir. 1994).
Concession of claims
In their response to the defendants' motion for summary judgment, the plaintiffs confess that the entry of summary judgment is appropriate as to plaintiffs' claims for unreasonable search, due process violations and defamation arising under state law. In light of the plaintiffs' confession of these claims, the motion of the defendants shall be granted as to those claims. Therefore, all that remains for this court to address is the claim of plaintiff Eddie Fioretti that he was constructively discharged from the Holly Springs Police Department in violation of his First Amendment right of freedom of association, and the claim of plaintiff Lenwood Smith that he was terminated from his position with the Holly Springs Police Department in violation of his Fourteenth Amendment right to equal protection under the law.
First Amendment claim by plaintiff Eddie Fioretti
This court has had occasion recently to address the nature of a citizen's associational rights:
[T]he First Amendment does not contain a "generalized right of `social association.'" City of Dallas v. Stranglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989); Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1051 (5th Cir. 1996). Rather, the United States Supreme Court has determined that the First Amendment encompasses two categories of protection in this regard: 1) "intimate association"; and 2) "expressive association." City of Dallas. 490 U.S. at 23-25, 109 S.Ct. at 1594-95; Board of Directors of Rotary Int'l v. Rotary Club of Duarte. 481 U.S. 537, 544, 107 S.Ct. 1940, 1945, 95 L.Ed.2d 474 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 3249-50, 82 L.Ed.2d 462 (1984). The right of "expressive association" protects the rights of individuals to associate "for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion." City of Dallas. 490 U.S. at 24, 104 L.Ed.2d at 25 (quoting Roberts. 468 U.S. at 617-18). There is no evidence before the court to indicate that this type of associational protection is that which the plaintiff claims has been violated by the defendant, and the plaintiff has not even asserted such.
The right of "intimate association," also referred to by some courts as the right of "private association," is an entirely different animal. Its purpose is to protect against unjustified government interference with an individual's right to enter into and maintain certain intimate human relationships, and is protected as an element of personal liberty. City of Dallas. 490 U.S. at 24, 104 L.Ed.2d at 25 (quoting Roberts. 468 U.S. at 617-18); Wallace. 80 F.3d at 1051; Louisiana Deb, and Lit. Ass'n v. City of New Orleans. 42 F.3d 1483, 1493 (5th Cir. 1995).
This associational right most closely fits the contours of the plaintiff's claim in this cause. The relationships to which courts have extended this protection include that of marriage, the bearing of children, child rearing and education, and the cohabitation with familial relatives. Wallace. 80 F.3d at 1051 (citing Rotary Club. 481 U.S. at 545, 107 S.Ct. at 1945-46). A bright line determination of familial relationship does not establish the right, however, and other relationships may suffice. Particularly, relationships can give rise to a protected right if they are of the kind:
that presuppose "deep attachments and commitments to the necessary few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life."
Id (citing Rotary Club. 481 U.S. at 545, 107 S.Ct. at 1946); see, e.g., Louisiana Deb, and Lit. Ass'n. 42 F.3d at 1493 (association with private club found sufficient). Whether the right does in fact extend to relationships outside of the familial context depends upon the extent to which those attachments share qualities distinctive to family relationships. Id. at 1494 (enumerating factors considered in determination of associational rights of an organized club).Tillman v. City of West Point. — F. Supp. —, 1996 WL 672105, *5 (N.D. Miss. Sep. 10, 1996) (Davidson, J.) (Memorandum Opinion and Order Granting Motion for Summary Judgment), aff'd, No. 96-60643 (5th Cir. Feb. 17, 1997). Likewise, in this case, the First Amendment right of "intimate association" is the appropriate one to consider in light of the plaintiff Fioretti's claim at bar.
While the circuits agree upon the scope of its protection, some circuits have determined that the right of "intimate association" derives not from the First Amendment, but from the substantive due process principles of the Fourteenth Amendment. See, e.g., Griffin v. Strong. 983 F.2d 1544, 1546-47 (10th Cir. 1993); Swank v. Smart. 898 F.2d 1247, 1251-52 (7th Cir. 1990); IDK Inc. v. County of Clark. 836 F.2d 1185, 1191-92 (9th Cir. 1988).
As the plaintiff in Tillman, however, the undersigned is of the opinion that Mr. Fioretti has failed to present sufficient proof to this court that he enjoyed a protected "intimate relationship" with Lenwood Smith. While acknowledging that the relationship in this case does not fit traditionally protected associations, Mr. Fioretti strenuously argues that his professional association with Mr. Smith is entitled to the associational protections of the First Amendment.
While this is not the type of "intimate" relationship generally envisioned by the courts, neither is Mr. Fioretti's freedom of association claim based on some vague generalized right of social association with Mr. Smith. The working relationship between these two officers was strong and premised on a desire to improve the police department and maintain good race relations with the citizens of Holly Springs.
Plaintiffs' Response Brief, p. 15. The court agrees that pursuit of such ideals is admirable, and that such activity should be encouraged. Nevertheless, the inherent "worth" which serves as the basis of a relationship is not the measurement to be considered when determining if that relationship is entitled to the associational protection provided by the First Amendment. Indeed, this court should not engage in the business of determining the merit of such social aims. If courts were permitted to engage in such speculation, many prior associational decisions could have been decided differently. See, e.g., Louisiana Deb, and Lit. Ass'n, 42 F.3d at 1500 (finding certain social clubs which limit membership exclusively to "white non-Semitic males of a limited ethnic genealogy" entitled to associational protection).
Instead, this court must look to the degree of intimacy between the persons involved in the association to determine if that association is entitled to protection. As already noted, the degree of intimacy required is that of a familial relationship or its equivalency.Wallace. 80 F.3d at 1051. The defendants have carried their burden on summary judgment to demonstrate the absence of genuine issues of material fact in this regard, and Mr. Fioretti has failed to present admissible evidence to this court that he had such an intimate relationship with Mr. Smith so as to justify the protection of the First Amendment. The motion of the defendants shall be granted as to Mr. Fioretti's claim arising under the First Amendment, and as he has no remaining claims pending before this court, Mr. Fioretti shall be dismissed from this action.
Equal Protection claim by plaintiff Lenwood Smith Interplay of § 1983 and Title VII
The defendants also argue that plaintiff Lenwood Smith is legally precluded from maintaining a § 1983 claim in this case:
The Fifth Circuit has held that a public employee's exclusive remedy for this type of wrong is Title VII of the Civil Rights Act of 1964 ( 42 U.S.C. § 2000e et seq.). In Jackson v. City of Atlanta, 73 F.3d 60 (5th Cir. 1996), cert denied, 117 S.Ct. 70, the Fifth Circuit held that Title VII provides the exclusive remedy for allegations of race discrimination in public employment.
Defendants' Brief, p. 15. The undersigned has also previously addressed this contention and found it lacking.
The defendants' second shortfall is their misinterpretation of the recent Fifth Circuit opinion in Jackson v. City of Atlanta. Tx., 73 F.3d 60 (5th Cir. 1996). In that case, the court reaffirmed its holding in Irby v. Sullivan that a "violation of Title VII cannot also support a § 1983 suit." Jackson. 73 F.3d at 63. The defendants read this language as precluding the plaintiff's First Amendment claim brought under § 1983. In Jackson, the basis for the plaintiffs § 1983 claim was the alleged violation of Title VII. Id at 61 and 63. The court held that the § 1983 claim should be dismissed since § 1983 does not create any substantive rights itself but only provides a remedy for the violation of federal substantive rights and "§ 1983 is not available when `the governing statute provides an exclusive remedy for violations of its terms.'" Id. at 63 (quoting Pennhurst State Sch. Hosp. v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545-46, 67 L.Ed.2d 694 (1981)). Because Jackson's § 1983 claim hinged on a violation of Title VII and Title VII provides an exclusive remedy for violations of its terms, the court dismissed the § 1983 claim.
Mr. Short's § 1983 claim does not hinge on an alleged violation of Title VII. Instead, the substantive federal right he submits the defendants infringed upon is his freedom of speech protected under the First Amendment. As noted by the Jackson Court, a plaintiff may 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. Id at 63 n. 13 (emphasis in original). The First Amendment sets out a constitutional right separate from what Title VII protects and the plaintiff is not precluded by Jackson from asserting a § 1983 claim under these facts.Short v. City of West Point. 1997 WL 737535, *4, Civil Action No. 1:95cv359-D-D (N.D. Miss. 1997) (Davidson, J.) (Memorandum Opinion and Order Granting in Part Motion for Summary Judgment, p 10-11) (footnote omitted). The court reaches the same result today. As explained below, the defendants read too much into the Jackson decision.
Plaintiffs may bring actions under 42 U.S.C. § 1983 to enforce rights arising under federal law, regardless of whether the source of the particular right is constitutional or statutory. See. e.g.Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 n. 9, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990) (acknowledging "general rule that § 1983 provides a remedy for violation of federal statutory rights") (emphasis added); Wilson v. Garcia, 471 U.S. 261, 277, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985) ("In essence, § 1983 creates a cause of action where there has been an injury, under color of state law, to the person or to the constitutional or federal statutory rights which emanate from or are guaranteed to the person.") (quoting Almond v. Kent. 459 F.2d 200, 204 (4th Cir. 1972)) (emphasis added). The purpose underlying § 1983 is remedial. It creates no substantive rights, but rather creates an enforcement mechanism for existing federal constitutional and statutory rights.Harrington v. Harris. 1997 WL 114851, *4 (5th Cir. Mar. 14, 1997); Jackson. 73 F.3d at 63; McGregor v. Louisiana State Univ. Bd. of Sup'rs, 3 F.3d 850, 867 (5th Cir. 1993).
If a federal statutory provision provides its own remedy, then the remedial provisions of § 1983 are not required to enforce that right because Congress has displaced the § 1983 remedy in that particular statutory context. Therefore, since Title VII carries with it remedial provisions for violations of its own terms, it is the exclusive remedy for the breach of those terms. Simply put, § 1983 cannot be used to enforce the terms of Title VII. Grady v. El Paso Community College. 979 F.2d 1111, 1113 (5th Cir. 1992) ("[A] violation of Title VII cannot support a 1983 suit."); Irby v. Sullivan. 737 F.2d 1418, 1428 (5th Cir. 1984) ("[T]he rights created by section 704(a) [of Title VII] may not be asserted within the remedial framework of section 1983.").
Nevertheless, this does not mean, as the defendants suggest, that a plaintiff is precluded from seeking recovery under § 1983 for violations of independently derived federal rights against discrimination which arise from the same set of facts as a potential Title VII claim. Title VII does not preempt a collateral § 1983 action based upon the same incident. Wilson v. UT Health Center. 973 F.2d 1263, 1268 (5th Cir. 1992).
Title VII is the exclusive remedy for a violation of its own terms. But when a public employer's conduct violates Title VII and a separate constitutional or statutory right, the injured employee may pursue a remedy under 1983 as well as under Title VII.Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1573 (5th Cir. 1989) (emphasis added). The Fifth Circuit inJackson merely reaffirmed the longstanding rule that a party may only seek to enforce the provisions of Title VII through Title VII itself. Jackson involved a plaintiff's attempt to utilize the remedial structure of § 1983 to enforce rights created under the auspices of Title VII — the plaintiff did not seek to enforce an independent federal rule of federal law. Jackson. 73 F.3d at 63 n. 13 (5th Cir. 1996) ("[Jackson] has not identified a separate constitutional or statutory right and thus Johnson is inapplicable.") (emphasis added).
In this case, however, the plaintiff charges that the defendants violated his constitutional right of equal protection arising from the Fourteenth Amendment to the United States Constitution — a separate, independent federal right which predates the rights created by Title VII. While rights under Title VII and the Fourteenth Amendment are similar in some respects, they are not identical. Edwards v. City of Houston. 37 F.3d 1097, 1109 n. 9 (5th Cir. 1994) ("Title VII . . . was enacted pursuant to the commerce power to regulate purely private decision making and was not intended to incorporate and particularize the commands of the Fifth and Fourteenth Amendments.") (quoting United Steelworkers of America v. Weber. 443 U.S. 193, 206 n. 6, 99 S.Ct. 2721, 2729 n. 6, 61 L.Ed.2d 480 (1979)). The Fifth Circuit, like every other circuit to address the issue, allows such Fourteenth Amendment discrimination claims to proceed independently of Title VII. See, e.g. Wallace. 80 F.3d at 1047 (discussing how discrimination claims under Title VII, § 1981 and § 1983 are proved similarly); Edwards. 37 F.3d at 1109-15 (analyzing Title VII and Fourteenth Amendment equal protection race claims in tandem); Waid v. Merrill Area Public Schools. 91 F.3d 857, 862 (7th Cir. 1996); Keller v. St. George's County. 827 F.2d 952, 956 (4th Cir. 1987).
The distinction between an "independent ground for relief" and "independent facts" as a basis for recovery was thoroughly discussed by the Fifth Circuit in Johnson. Johnson. 869 F.2d at 1575 ("By requiring public employees to advance both their Title VII and their § 1983 claims in one suit we effectively recognized that Title VII does not preclude an action under § 1983 arising from the same facts") (emphasis added). There have been many decisions in the Fifth Circuit where plaintiffs were allowed to proceed with multiple causes of action for discrimination arising out of the same factual basis, and
[i]n each of these cases, we declined to consider the plaintiffs' § 1983 or § 1981 claims, instead resolving only their Title VII claims. We have rejected, however, any notion that this line of cases has redesigned Title VII to create an exclusive remedy. In Hernandez v. Hill Country Telephone Co-Op. Inc., we held that the cases do not stand for the proposition "that a claimant alleging racial discrimination in an employment setting is limited to recovery under Title VII." 849 F.2d 139, 142-43 (5th Cir. 1988); accord, Gonzalez v. Public Health Trust. 686 F. Supp. 898 (S.D. Ha. 1988).Id. (emphasis added). Nothing in the Jackson decision overrules Johnson and its determination that the same set of facts can give rise to causes of action under both Title VII and § 1983, as long as there is a separate and independent federal right to support the § 1983 action. This court will follow the line of cases in the Fifth Circuit that permits such an independent § 1983 action to stand, and shall not dismiss the plaintiffs § 1983 claim in this case on the ground that it is somehow preempted by Title VII.
To any extent that Jackson might do so, however, it is an aberration and this court must follow the dictates ofJohnson. One panel of the Fifth Circuit may not overrule a prior panel decision. Winchester v. U.S. Attv. for the Southern Dist. of Texas. 68 F.3d 947, 949 (5th Cir. 1996); Kiser v. Garrett, 67 F.3d 1166, 1173 (5th Cir. 1995); Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1016-17 (5th Cir. 1994).
The undersigned also spies potential constitutional problems with the inference that Congress could preempt the protective shroud of federal constitutional amendments merely by passing a remedial statutory scheme such as Title VII without again procuring amendment to the Constitution. It is basic hornbook constitutional law that Congress may not trump a constitutional amendment by statute.
Qualified Immunity of defendant Billy Hasty
Whenever qualified immunity is asserted as an affirmative defense in a § 1983 action, resolution of the issue should occur at the earliest possible stage. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Elliott v. Perez, 751 F.2d 1472, 1478 (5th Cir. 1985). Issues of qualified immunity are normally determined from the face of the pleadings and without extended resort to pre-trial discovery. Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). Public officials, including law enforcement officers such as the individual defendant, are entitled to assert the defense of qualified immunity in a § 1983 suit for discretionary acts occurring in the course of their official duties. Harlow v. Fitzgerald. 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396, 403 (1982); Gagne v. City of Galveston, 805 F.2d 558, 559 (5th Cir. 1986); Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir. 1986).
Public officials are shielded from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984); Harlow v. Fitzgerald. 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); White v. Walker. 950 F.2d 972, 975 (5th Cir. 1991);Morales v. Haynes, 890 F.2d 708, 710 (5th Cir. 1989). Stated differently, qualified immunity provides "ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).
The first step in the inquiry of the defendants' claims of qualified immunity is whether the plaintiff has alleged the violation of a clearly established right. Siegert v. Gilley, 500 U.S. 266, 111 S.Ct. 1789, 114 L.Ed.2d 277, 287 (1991). This inquiry necessarily questions whether or not the officer acted reasonably under settled law in the circumstances with which he was confronted. Hunter v. Bryant, 502 U.S. 224, 112 S.Ct. 534, 116 L.Ed.2d 589, 596 (1991); Lampkin v. City of Nacogdoches, 7 F.3d 430 (5th Cir. 1993). "If reasonable public officials could differ on the lawfulness of the defendant's actions, the defendant is entitled to qualified immunity." Blackwell v. Barton. 34 F.3d 298, 303 (5th Cir. 1994) (quoting Pfannstiel v. Marion. 918 F.2d 1178, 1183 (5th Cir. 1990)). Even if the individual defendants violated Smiths' constitutional rights, they are entitled to immunity if their actions were objectively reasonable.Blackwell, 34 F.2d at 303.
The issue is an "objective (albeit fact-specific) question whether a reasonable officer could have believed" that he was violating the plaintiff's constitutionally protected rights "under the circumstances of the complained of action." Mangieri, 29 F.3d at 1017 (emphasis added) (quoting Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990)); see Hale v. Townley, 45 F.3d 914, 918 (5th Cir. 1995) ("Factual allegations are examined to determine whether they would be sufficient, if proven, to establish a violation of clearly established law.") (emphasis added). In its most basic terms, this court must 1) assume that the official committed the acts of which the plaintiff complains, 2) determine what relevant facts and circumstances surrounded the action, including what facts the official was aware of or should have been aware of when taking the alleged action, and 3) objectively determine as a matter of law whether a reasonable official in the defendants' position would have believed that he was violating clearly established constitutional rights by taking such action. Only the second of these inquiries has the potential to raise genuine issues of material fact, and only the presence of such issues would allow the submission of the immunity question to the finder of fact. Brown v. Bryan County. 67 F.3d 1174, 1181 n. 14 (5th Cir. 1995);Mangieri, 29 F.3d at 1017-18; Lampkin, 7 F.3d at 434-36. ("Rule 56 still has vitality in qualified immunity cases if [there are] underlying historical facts in dispute that are material to resolutions of the questions whether the defendants acted in an objectively reasonable manner in view of the existing law and facts available to them.") (emphasis added); Auster Oil Gas. Inc. v. Stream. 835 F.2d 597, 601 (5th Cir. 1988) ("Had appellants timely asserted the question of qualified immunity, subsidiary questions of fact might have arisen, such as what information they possessed that might have led a reasonable person to believe that [their action] was lawful.").
The court, in considering the assertion of defendant Billy Hasty to the entitlement of qualified immunity, cannot say that there is no genuine issue of material fact in this regard or that the defendant is entitled to a judgment as a matter of law. The plaintiff has adequately stated the violation of a clearly established constitutional right. Further, when assuming that the defendant Hasty did in fact commit the acts attributed to him in the complaint, the court cannot say that any reasonable public official would have been ignorant of the fact that he was violating those clearly established rights. This court finds that there are genuine issues of material fact as to the knowledge possessed by Hasty during the events in question, and the motion of the defendants shall be denied in this regard.
Merits of the 1983 claim
Even though Title VII does not govern Smith's equal protection claim under the Fourteenth Amendment, the Fifth Circuit has noted that the elements of such a claim in the context of employment discrimination are essentially the same as those under Title VII. See. e.g., Wallace. 80 F.3d at 1047; Anderson v. Douglas Lomason Co., 26 F.3d 1277, 1284 n. 7 (5th Cir. 1994); Guillory v. St. Landry Parish Police Jury, 802 F.2d 822, 824; Irbv. 737 F.2d at 1431 . As a general rule, the court utilizes theMcDonnell-Douglas framework of shifting burdens of proof: 1) the plaintiff must establish a prima facie case of discrimination, 2) the burden then shifts to the defendant to articulate a legitimate and nondiscriminatory reason for its actions, and 3) the burden returns to the plaintiff to prove that the proffered reason was a mere pretext for discrimination and that the real reason was to discriminate. McDonnel-Douglas Corp. v. Green. 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Polanco. v. City of Austin. 78 F.3d 968, 976 (5th Cir. 1996); Marcantel v. Louisiana Dep't of Trans. Dev., 37 F.3d 197, 199 (5th Cir. 1994). In order to establish a prima facie case in a claim of disparate treatment, the plaintiff must show:
1) he was a member of a protected class;
2) he was qualified for the position that he held;
3) he suffered an adverse employment decision; and
4) the plaintiff's employer replaced him with a person who is not a member of the protected class, or in cases where the employer does not intend to replace the plaintiff, the employer retains others in similar positions who are not members of the protected class.Meinecke v. H R Block Income Tax Sch., Inc., 66 F.3d 77, 83 (5th Cir. 1995); Valdez v. San Antonio Chamber of Commerce, 974 F.2d 592, 596 (5th Cir. 1992); Thornbrough v. Columbus Greenville R. Co., 760 F.2d 633, 642 (5th Cir. 1985) (citing Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir. 1981)), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). The showing of a prima facie case is not necessary, however, if the plaintiff possesses direct evidence of discrimination.
In the rare situation in which the evidence establishes that an employer openly discriminates against an individual it is not necessary to apply the mechanical formula of McDonnell Douglas to establish an inference of discrimination.Moore v. United States Dept. of Ag., 55 F.3d 991, 995 (5th Cir. 1995) (quoting Kendall v. Block. 821 F.2d 1142, 1145 (5th Cir. 1987)): see also Trans World Airlines. Inc. v. Thurston, 469 U.S. Ill, 121, 105 S.Ct. 613. 621-22. 83 L.Ed.2d 523 (1985) ("the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination"); Rizzo v. Children's World Learning Centers. Inc., 84 F.3d 758, 762 (5th Cir. 1996).
In the case at bar, the court is satisfied that the plaintiff Smith has presented sufficient direct evidence of discrimination that he should not be required to wade through a McDonnell-Douglas analysis. The undersigned finds particularly important the comments attributable to Billy Hasty, e.g., "Chief Hasty told me not to do anything for that black ass nigger he's not going to be here that long." The defendants' statement that Chief Hasty had no authority to fire Smith does not prevent Smith's claim from going forward — it is sufficient that Chief Hasty could have influenced the board's decision and caused his resulting termination by the Board. Of course, whether Chief Hasty has sufficient influence to cause Smith's termination, as well as whether he did in fact cause it, are questions of fact for resolution by a jury. As the defendants have not sufficiently carried their evidentiary burden in this regard, there remain sufficient genuine issues of material fact in this cause as to Smith's claim of racial discrimination arising under the equal protection clause of the Fourteenth Amendment. As such, the defendants are not entitled to the entry of a judgment as a matter of law and the defendants' motion shall be denied as to this claim. At least as to the merits of the plaintiff's claim in this regard, as opposed to conclusive determinations of immunity, this court has the discretion to deny the defendants' summary judgment motion and allow the plaintiff's claim to go forward. Kunin v. Feofanov, 69 F.3d 59, 61 (5th Cir. 1995); Black v. J.I. Case Co., 22 F.3d 568, 572 (5th Cir. 1994); Veillon v. Exploration Services. Inc., 876 F.2d 1197, 1200 (5th Cir. 1989).
"Chief Hasty did not have power to hire or fire Smith; therefore, Smith's race discrimination in employment claim may not be asserted against him." Defendants' Memorandum Brief, p. 19.
III. Conclusion
After careful consideration, the court finds that the motion of the defendants for the entry of summary judgment in this cause should be granted in part and denied in part. The motion shall be granted insofar as the plaintiffs' claims of unreasonable search, due process violations and state law defamation claim. Further, the motion shall be granted with regard to the claim of Eddie Fioretti that he was constructively discharged in violation of his First Amendment right of freedom of association. However, the court shall deny the motion with regard to plaintiff Smith's claim that he was terminated from his employment by the defendants in violation of his right to equal protection arising under the Fourteenth Amendment, and shall also deny the motion to the extent that defendant Billy Hasty asserts the protection of the qualified immunity doctrine.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED THAT:
) the motion of the defendants for the entry of summary judgment on their behalf is hereby GRANTED IN PART. The motion is hereby granted with regard to the plaintiffs' claims of unreasonable search, violations of due process rights and state law defamation claim. Further, the motion is hereby granted as to the claim of the plaintiff Fioretti arising under his associational rights granted by the First Amendment;
) as the plaintiff Fioretti has no other viable claims pending before this court, he is hereby DISMISSED from this action;
) as to the remainder of plaintiff Smith's claims, the motion of the defendants is hereby DENIED.
SO ORDERED.