[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

J u n e 21, 2006

N o . 05-12231 T H O M A S K. KAHN

CLERK

D . C. Docket No. 02-00190-CV-WLS-1

JE F F E R Y GARDNER,

ROGER CLAYTON,

Plaintiffs-Appellees,

versus

CITY OF CAMILLA, GEORGIA, et al.,

Defendants,

MIKE SCOTT, Individually and in

his official capacity as City Manager

of the City of Camilla, Georgia,

DAVID IRWIN, Individually and in

his official capacity as Fire

Chief of City of Camilla, Georgia,

Defendants-Appellants.

A p p e al from the United States District Court

fo r the Middle District of Georgia

(J u n e 21, 2006)

B efo re BIRCH, CARNES and BRUNETTI *, Circuit Judges.

P E R CURIAM: M ik e Scott and David Irwin, defendants-appellants in this employment d iscrim in atio n action, appeal the district court's denial of their motion for su m m ary judgment based on qualified immunity as to the race discrimination and retaliatio n claims brought against them pursuant to 42U.S.C. § 1983. First, we f in d that because Scott has essentially raised only issues of evidence sufficiency as to the discrimination claims, we are left without jurisdiction to review them upon in terlo cu to ry appeal. Second, after confirming our jurisdiction as to the retaliation c la im s , we find the district court erred in denying qualified immunity because there is no clearly established right under the Equal Protection Clause to be free from retaliatio n . Accordingly, we DISMISS IN PART, VACATE IN PART, and R E M A N D for further proceedings in accordance with this opinion.

I. BACKGROUND T h is appeal relates to four separate actions that were later consolidated.

Jeffery Gardner and Roger Clayton, both black male captains of the fire d ep artm en t of the City of Camilla, Georgia (the "City"), filed separate complaints ag ain st the City and Scott, the city manager. Gardner and Clayton alleged claims o f race discrimination pursuant to 42U.S.C. § 1983 based on the failure of the City a n d Scott to promote them to the position of fire chief and on their decision to hire Irw in , a white firefighter, for the position. Gardner and Clayton also filed separate co m p lain ts against the City, Scott, and Irwin, alleging claims of retaliation p u rsu an t to § 1983.1 T h e defendants filed a motion for summary judgment, arguing, inter alia, th a t (1) Scott and Irwin were entitled to qualified immunity as to the § 1983 race d is cr im in a tio n and retaliation claims; (2) Gardner and Clayton could not show that S co tt's legitimate, nondiscriminatory reasons for not promoting Gardner and C layto n were pretextual; and (3) Gardner and Clayton did not suffer an adverse e m p lo y m e n t action sufficient to support a retaliation claim. The district court d e n ie d the motion on the grounds that (1) there was a genuine issue of material fact as to whether the legitimate, nondiscriminatory reasons Scott gave for not p ro m o tin g Gardner and Clayton were a pretext for racial discrimination; (2) alth o u g h Gardner and Clayton had established a prima facie case of retaliation, S co tt and Irwin had failed to rebut it with a legitimate, nondiscriminatory reason fo r their actions; and (3) neither Scott nor Irwin was entitled to qualified immunity b ecau se "the right to be free from racial discrimination is so `clearly established' th at it is axiomatic and requires no citation to Eleventh Circuit precedent," and "if th e allegations prove true, then Defendants['] actions violated this right." R1-62 at 13.

O n appeal, Scott argues that he is entitled to qualified immunity as to G a rd n e r and Clayton's § 1983 discrimination claims because they failed to produce "sig n ifican t probative evidence" of racially discriminatory intent in his failure to m a k e either of them fire chief. He further asserts that the district court, in its brief s ta te m e n t confirming the general unconstitutionality of racial discrimination, failed p ro p erly to complete the qualified immunity analysis as to whether the right alleg ed ly violated had been clearly established. More specifically, he argues that, e v e n if there is evidence of discriminatory intent, he is still entitled to qualified im m u n ity under our decision in Foy v. Holston 2 because he was also motivated by le g itim a te , nondiscriminatory reasons. Scott and Irwin then both argue that they are due qualified immunity as to the retaliation claims because Gardner and C layto n improperly asserted a violation of their equal protection rights in co n n ectio n with their § 1983 retaliation claims.

II. DISCUSSION "Q u alified immunity offers complete protection for government officials su ed in their individual capacities if their conduct `does not violate clearly estab lish ed statutory or constitutional rights of which a reasonable person would h av e known.'" Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting H arlo w v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). We r ev ie w denials of qualified immunity de novo, resolving all issues of material fact in favor of the plaintiff. Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000).

A. Racial Discrimination Claims 1 . Jurisdiction B e ca u s e this appeal arises from a denial of summary judgment rather than fr o m a final order, we must first determine whether we have jurisdiction. "We r ev ie w questions of subject matter jurisdiction de novo." See Milan Express, Inc. v . Averitt Express, Inc., 208 F.3d 975, 978 (11th Cir. 2000). "[A] district judge's d en ial of [summary judgment based on qualified immunity] is an immediately ap p ealab le collateral order, provided that it concerns solely the pure legal decision o f (1) whether the implicated federal constitutional right was clearly established a n d (2) whether the alleged acts violated that law" ­ the two parts of the "`core q u a lif ie d immunity' analysis." Koch v. Rugg, 221 F.3d 1283, 1294-95 (11th Cir. 2 0 0 0 ) (emphasis omitted). In other words, it must "present a legal question co n cern in g a clearly established federal right that can be decided apart from co n sid er in g sufficiency of the evidence relative to the correctness of the plaintiff's alleg ed facts." Id. at 1294. If the defendant "challenges only sufficiency of the e v id e n c e relative to a `predicate factual element of the underlying constitutional to rt,'" we have no jurisdiction. Id. at 1296 (quoting Dolihite v. Maughon ex rel.

V id eo n , 74 F.3d 1027, 1033 n.3 (11th Cir. 1996)). Such an issue is not im m ed iately appealable because it "involve[s] the determination of `facts a party m ay, or may not, be able to prove at trial.'" Id. (quoting Johnson v. Jones, 515 U .S . 304, 313, 115 S. Ct. 2151, 2156) (1995).

I n Koch, we lacked jurisdiction because the interlocutory appeal ­ based "s o le ly on the lack of evidence to show racially discriminatory intent in the[] d ecisio n not to hire [the plaintiff-appellee]" ­ presented "a critical element of the p rin cip al case for trial, rather than core qualified immunity issues." Id. at 1298.

"W h en discriminatory intent is a predicate factual element of the underlying co n stitu tio n al tort, we have recognized that sufficiency of discriminatory-intent e v id e n c e generally is not part of the core qualified immunity analysis." Id. at 1297.

A s in Koch, Scott here argues that there is a lack of evidence to show racially discriminatory intent in his decision not to hire either Clayton or Gardner.

Based on this issue alone, we have no jurisdiction. Scott, however, has also argued th at it was not clearly established that his actions violated a constitutional right h e ld by Clayton and Gardner.3 3 The determination of whether federal law is "clearly established" must be made "in light of the specific context of the case, not as a broad general proposition." Vinyard, 311 F.3d at 1349. Because the "right the official is alleged to have violated must have been `clearly established' in a more particularized and hence more relevant sense," Anderson v. Creighton, 483 U.S. 635, 640 (1987), Scott may be correct that the broad abstract statement by the district court is technically insufficient. To the extent Scott argues that we have jurisdiction on the basis of that legal argument, we observe that it is difficult to imagine that a right could be "so `clearly established' that it is axiomatic and requires no citation to Eleventh Circuit precedent." In this case, however, the addition of the words "in the context of employment decisions" would have sufficed.

Taking the facts alleged in the light most favorable to Gardner and Clayton, Scott discriminated against them on the basis of race in hiring Irwin as fire chief. As we noted in Koch, "race discrimination was prohibited in public employment well before the challenged employment decision" here. See Koch, 221 F.3d at 1298 n.32 (citing Washington v. Davis, 426 U.S. 229, 239-41, 96 S. Ct. 2040, 2047-48 (1976) and Busby v. City of Orlando, 931 F.2d 764, 775 (11th Cir. 1991) (per curiam)). Further, we have specifically found various race-based employment decisions by public officials, including those concerning discipline, promotions, and reclassifications, to be in violation of a constitutional right. See Alexander v. Fulton County, Ga., 207 F.3d 1303, 1313, 1321 (11th Cir. 2000) (affirming a jury verdict of intentional employment discrimination by a black sheriff who made race-based employment decisions concerning white officers with respect to discipline, promotions, transfers, and reclassifications); Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1064 (11th Cir. 1992) (holding that intentionally discriminatory hiring and firing practices violated the Equal Protection Clause); Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1478 (11th Cir. 1991) (recognizing a right under the Equal Protection Clause to be free from termination because of race).

Accordingly, despite the district court's failure to analyze the right violated in a more specific context, the court was correct in concluding that, because whether Scott acted with discriminatory intent in hiring Irwin over Gardner or Clayton remains a genuine issue of material 2 . Foy M o re specifically, Scott now argues that, even if there is evidence of d iscrim in ato ry intent, he is entitled to qualified immunity under our decision in F o y v. Holston, wherein we held that "[a]t least when an adequate lawful motive is p r e se n t, that a discriminatory motive might also exist does not sweep qualified im m u n ity from the field even at the summary judgment stage." Foy, 94 F.3d at 1 5 3 4 -3 5 . We have further clarified, however, that "[a] defendant is entitled to q u alified immunity under the Foy rationale only where, among other things, the reco rd indisputably establishes that the defendant in fact was motivated, at least in p art, by lawful considerations." Stanley v. City of Dalton, Ga., 219 F.3d 1280, 1 2 9 6 (11th Cir. 2000) (emphasis added).

Although this might appear to raise a legal argument as to the core qualified im m u n ity issue of whether Scott's alleged conduct violated a clearly established co n stitu tio n al right, it is essentially only an evidence sufficiency issue in the guise o f a question of law. Scott, both here and below, asserted that he chose not to hire G ard n er or Clayton as fire chief because they lacked the requisite leadership and o rg an izatio n al skills. The district court denied Scott qualified immunity as to the race discrimination claim with respect to this argument because it found a genuine fact for trial, summary judgment based on qualified immunity as to the race discrimination claims was not appropriate on that ground. is su e of material fact as to whether the proffered legitimate reasons were in fact p retex t for racial discrimination. Thus, the district court, in essence, found that the reco rd did not indisputably establish the existence of a nondiscriminatory motive.

As such, the district court did not err in its qualified immunity analysis as to that issu e. In his appeal, based on proffered but unestablished legitimate reasons, Scott h as merely raised a second evidence sufficiency issue, over which we have no ju risd ictio n upon interlocutory appeal.

B. Retaliation Claims S co tt and Irwin both argue that each is entitled to qualified immunity with resp ect to Gardner and Clayton's § 1983 retaliation claims. Because Scott and Irw in 's argument here is based solely on an issue of law ­ whether Gardner and C layto n have presented a constitutional violation ­ we have jurisdiction over the d en ial of qualified immunity as to these claims. See Koch, 221 F.3d at 1294.

Accordingly, we proceed to the argument.

"T h e right to be free from retaliation is clearly established as a first a m e n d m e n t right and as a statutory right under Title VII; but no clearly established rig h t exists under the equal protection clause to be free from retaliation." Ratliff v. D eK alb County, Ga., 62 F.3d 338, 340 (11th Cir. 1995). Here, Gardner and C layto n both alleged, pursuant to § 1983, that, after they had filed their d iscrim in atio n actions, Scott and Irwin retaliated against them in violation of their r ig h t to equal protection by (1) relieving them of their training duties in favor of a less-q u alified white individual, (2) denying them training opportunities and sch o o lin g , and (3) diminishing their authority and supervisory duties. Because we h av e held that no clearly established right exists under the Equal Protection Clause to be free from retaliation, even when we take the facts in the light most favorable to Gardner and Clayton, they cannot demonstrate that the actions of either Scott or Irw in violated a constitutional right. Accordingly, Scott and Irwin are entitled to q u alified immunity as to the § 1983 retaliation claims.4 III. CONCLUSION Scott and Irwin appeal the district court's denial of their motion for su m m ary judgment based on qualified immunity with respect to both the d iscrim in atio n and retaliation claims brought against them pursuant to 42U.S.C. § 1 9 8 3 . First, because Scott essentially raises only evidence sufficiency issues as to th e discrimination claims, we lack jurisdiction over the interlocutory appeal of the d istrict court's denial of qualified immunity with respect thereto. Second, because S co tt and Irwin raise a question of law concerning qualified immunity as to the retaliatio n claims, we do have jurisdiction and, because there is no clearly estab lish ed right under the Equal Protection Clause to be free from retaliation, S co tt and Irwin are entitled to qualified immunity as to those claims. Accordingly, w e DISMISS the appeal as to the district court's denial of qualified immunity as to th e race discrimination claims, VACATE as to the denial of qualified immunity w ith respect to the retaliation claims, and REMAND for further proceedings co n sisten t with this opinion.

* Honorable Melvin Brunetti, Senior Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation.

1 Gardner and Clayton each also alleged claims of (1) retaliation and race discrimination (including hostile work environment) under 42U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42U.S.C. §§ 2000e-2(a), 3(a), and (2) interference with an employment relationship and emotional distress under Georgia law. The district court granted summary judgment in favor of Scott and Irwin with respect to these claims. This appeal concerns only the district court's denial of summary judgment based on qualified immunity with respect to the § 1983 discrimination and retaliation claims, and so we do not address the remaining claims. Further, the City of Camilla is not a party to this appeal.

2 94 F.3d 1528 (11th Cir. 1996)

4 The appellees also argue that the district court erred in granting summary judgment to the appellants on the appellees' § 1981 retaliation claims, finding that such claims were duplicative of their § 1983 retaliation claims. The appellees failed to perfect an appeal and, therefore, an appeal of that portion of the district court's order is not properly before us. See Campbell v. Wainwright, 726 F.2d 702, 704 (11th Cir. 1984).