In a case alleging a racial spoils system in county employment under § 1981, plaintiffs pretty nearly sweep the board in this interlocutory appeal of qualified immunity. One anomaly: while hounding someone out of job for racial/retaliatory reasons enjoys no qualified immunity, recommending elimination of an employee’s job from the county budget for the same reason is absolutely protected under legislative immunity.
Bryant v. Jones, No. 06-16591 (11th Cir. Jul. 31, 2009): Although most of the legal issues are fairly straight-forward, the panel still requires 58 pages to affirm — save in one respect — denial of qualified immunity against the county officials. The County CEO and others are charged with systemically terminating white managers and replacing them with African-American ones:
“In November 2000, Vernon Jones was elected DeKalb County’s Chief Executive Officer (‘CEO’). Jones was both the youngest person elected as CEO of the county and also the first African American elected to the position. After assuming office on January 1, 2001, Jones publicly announced plans to make the employees of DeKalb County ‘look like DeKalb County.’ Jones later explained that this meant bringing a ‘darker administration’ to ‘the new DeKalb County.’ To accomplish this goal, Jones and his administration implemented an aggressive restructuring program of the county’s government.”
There white plaintiffs claim that they were exposed to a hostile work environment, calculated to force them to resign. One manager claimed that the CEO menaced her physically, and that when she complained (about losing key job duties) was told by another defendant that “she didn’t understand the geopolitical issues in DeKalb County and that she could not relate to powerful black men.” The same plaintiff was dropped from a job heading a staff of 600 people and a department with an eight-figure budget, transferred to an office in a former storage closet, and directed to color maps.
One plaintiff named Lowe — himself African-American — allegedly “refused to participate in the plan and failed to carry out any orders designed to discriminate against whites. Jones told Lowe that by refusing to assist in executing his plan he was not being a ‘team player’ and did not fully appreciate and understand what Jones was trying to accomplish.” When Lowe continued to resist, he was moved out of his position as Deputy Director and assigned to temporary tasks at the CEO’s direction. Meanwhile, Jones’s executive assistant (named Stogner) prepared a budget for the County Board of Commissioners axing Lowe’s job.
The district court in this case denied summary judgment on the defenses of qualified and (in the case of Stogner) legislative immunity. On appeal, the panel affirms the former but reverses the latter. The primary issue on the former is whether the employees made out claims for hostile work environment and constructive discharge, and the panel finds that they do. The panel holds that in the face of a constructive discharge claim based on a hostile work environment, the defendants might have an affirmative defense — “An employer may defend against [a constructive discharge claim] by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of [discrimination], and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus” (Pennsylvania State Police v. Suders, 542 U.S. 129, 134 (2004). (Really, though, does this defense apply when the defendant isn’t even an employer, as here? Suders was a Title VII case. Call this anomaly number two.)
The most fascinating part of the opinion, though, was the legislative immunity piece. It holds that the act of removing a job from a governmental budget is governed by absolute legislative immunity, even when the actor is in the executive branch and not associated with the deliberation or passage of the resolution. Now note well, that if the Board itself passed the budget for the express purpose of discriminating against white managers or retaliating against a dissenter, the government could be sued directly under § 1983 for an equal protection violation; but if passed innocently, without awareness of the budget-author’s intent, the Board’s budget would (it seem) be practically bullet-proof. The perfect crime? Could this really be correct?
(Perhaps this is a third anomaly, but check out the docket number — could this appeal have actually been pending for 2 and 1/2 years? I’m guessing that the number must belong to a prior interlocutory appeal, but who knows? I tried to check out the Eleventh Circuit docket sheet, but it is not accessible on PACER except by separate registration.)