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 w

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

_______________

Dennis J. Roberts II with whom Law Offices of Dennis J. Robe

_____________________
_______________________________
II was on brief for appellee.
__

____________________

August 11, 1997

____________________

BOUDIN, Circuit Judge.

_____________

In the district

court, Maureen

Maigret and Susan

Sweet moved for summary

that Rhoda Tang's

claim against them under 42

was barred

that

by qualified immunity.

factual

issue,

appeal

disputes precluded

and Maigret

to

this

and Sweet

court.

judgment, arguing

U.S.C.

The district

summary

have

Under

1983

court held

judgment on

taken an

this

interlocutory

governing

Supreme

Court

precedent, we are obliged to dismiss the appeal on procedural

grounds.

Tang, an Asian

nutritionist

Affairs

since

discriminated

at

American, has worked as a

the

Rhode

Island

Department

1974.

In

her

view,

against

her

for

many

respects, primarily on

public health

the

Elderly

Department

years,

account of her race.

of

in

has

various

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,

Department), and Sweet

charged

that she had

and other

also

prior

Maigret

been discriminated against

conditions of

subjected to

complaint.

director

of

(then the associate director).

reasons in the

had been

(former

Her claims

-2-2-

were based

Tang

for racial

her employment

retaliation on

the

account

on Title

and

of her

VII, 42

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

moved

preliminary skirmishing,

for summary

judgment

as to

the

Maigret and

Sweet

section 1983

claim

against them on grounds of qualified immunity.

that there

racial

was a clearly

discrimination.

They conceded

established right to be

But,

relying

upon

free from

Harlow
______

v.

Fitzgerald,
__________

457

U.S.

800,

Creighton, 483 U.S. 635,

_________

objectively

reasonable

819

(1982),

and

Anderson
________

638-39 (1987), they argued

person

would

not

think

v.

that an

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

tasks); others might be more

sought

to

narrow

the

focus

directly linked only to one

that

factual

issues,

serious.

by

But Maigret and Sweet

asserting that

or two incidents.

including

many clerical

the

each

was

Tang answered

defendants'

alleged

discriminatory intent, precluded summary judgment.

In October 1996,

the district court filed

a memorandum

and

order

concluding

that

"the

motion for qualified immunity must

until completion of the trial

court

[individual]

defendants'

be and is hereby deferred

of the plaintiff's case."

The

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

made" but

explained: "It suffices

-3-3-

to say that I

agree with

plaintiff's counsel that

in dispute."

Although

the vast majority of the

facts are

This appeal followed.

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

taken from a recent Supreme

entitled

to

invoke

appeal a

district court

in language

Court case, is that "a defendant

a qualified

immunity

summary judgment

defense

may not

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

Forsyth, 472 U.S. 511, 530

earlier

held

in

Mitchell
________

v.

(1985), that despite the ordinary

_______

requirement

of finality, a

legal grounds is immediately

denial of qualified

immunity on

appealable under the collateral

order doctrine.

But in Johnson, it narrowed this opportunity

_______

by

an

saying that

immunity

found

would not

that a

be permitted

genuine issue

immediate grant of

58.

interlocutory appeal

of

where

from

the district

material fact

qualified immunity.

a denial

115 S.

of

court

precluded an

Ct. at 2156-

Accord Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996).

______ _______
_________

In

what is

construing these cases,

implicit in Johnson,
_______

this court has

spelled out

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.

-4-4-

Diaz
____

v. Diaz Martinez, 112

______________

Stella
______

such

the

F.3d

1, 4-5

v. Kelley, 63 F.3d 71, 77-78

______

an error can be described as

Supreme

Court

made

clear,

(1st Cir.

1997);

(1st Cir. 1995).

an error of law.

Johnson's
_______

True,

But, as

limitation

on

immediate

avoid

review rests primarily

bringing

except as

evidentiary
___________

on a prudential

disputes to

part of a final judgment.

the

desire to

appeals court

Johnson, 115 S. Ct. at

_______

2156-58.

In

this case,

specific

factual issues

reasoning probably

lines:

some of

discharge

Neither

the

district

or

lay along

that disputed

add up to something

that

the

court

explain

did

its

one or

more sinister as part

incidents (such

of Tang in 1989)

theory is impossible

as

identify

but

its

two different

themselves might

of a pattern,

the later

might not be

in the

ruling,

both of

incidents trivial in

not

or

withdrawn

so trivial at all.

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

detail

decide it,

the events

defendants' intent

we would have

cited by

Tang and

that might, or

But this is the

dispute

holds

Johnson
_______

to

-5-5-

the inferences

might not, be

the episodes alleged.

that

to describe

be

in some

as to

drawn from

very type of factual

premature

so

far

as

appellate

review is concerned.

Right or wrong, the district

court's ruling is not subject to immediate appeal.

The defendants counter by saying that

is irrelevant to

each

of the

Maigret's

qualified immunity.

few incidents

allegedly

complaint that

directly

inadequate

another department

They

subjective intent

concede arguendo
________

involving them

investigation

(e.g.,
____

of

Tang's

employee demanded

to use

Tang's computer although other machines were available).

drawing upon the Harlow-Anderson objective

______ ________

But

test of qualified

immunity, they

say that

no reasonable

person could

regard

these actions as unlawful discrimination.

We

not

think that

the Harlow-Anderson objective

______ ________

automatically resolve

favor

of

the

defendant

a qualified

in

discrimination or retaliation.

or

that

at least one

might

case

be

defended

illegitimate when taken out of

of

defense in

alleged

The essence of

standard version, is

otherwise

a prior complaint.

immunity

test does

racial

such claims,

that official actions

as

reasonable

become

racial bias or in revenge for

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.

to be manifestly

It is rarely going

unreasonable, judged apart from

motive, to

-6-6-

assign

particular

tasks

to

an

employee,

move

her

file

cabinet, alter

things

of

her parking

which Tang

constitutional

arrangements or

complains.

or statutory

But

do most

because

protections,

of the

of special

some motives
____

convert relatively minor slights into causes of action.

Rutan v. Republican Party of Illinois, 497 U.S. 62,

_____
____________________________

can

Cf.
___

75 & n.8

(1990).

An unresolved

intent

torts

tension

and

the

exists

between

such

specific-

objective Harlow-Anderson
______ ________

qualified

immunity test.1

That test was designed to

of

or

racial

bias

allegations

"in

bad

retaliation,

but

meet, not claims

rather

ill-founded

that an official action was "malicious" or taken

faith"--characterizations that

immunity at common law.

defeated

qualified

Prosser and Keeton on Torts

___________________________

132,

at 1059-62 (5th ed. 1984).

have almost uniformly

test of qualified

In all events, the circuit courts

refused to apply a

strictly objective

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

allow an appeal now, in a

suggest that

the

failure to

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.

(D.C. Cir. 1996)

(1997).

Crawford-El v.
___________

Britton,
_______

(en banc), cert. granted,

_____________

93 F.3d

813

65 U.S.L.W. 3817

-7-7-

government official

liability

prevents

but to

in a weak case
________________

avoid trial

only to

Of course,

avoid

nothing

a district court from granting summary judgment for

the defendants where proof of

is very

itself.

not

thin.

But

a racial or retaliatory motive

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.

S. Ct.

at

Harlow, 457
______

2154, 2158.

U.S. at 817-18,

officials arguably

charges

Given the

do need

See Johnson, 115

___ _______

policies

set forth

and Anderson, 483 U.S.

________

some special

of improper motive, which

in

at 641,

protection against

are easily made and which

may be supported simply by an alleged remark of the defendant

made when

only the plaintiff

was present.

officials facing such lawsuits is very real.

The

problem for

In a few circuits, it appears that courts have responded

by

squeezing

Johnson
_______

interlocutory review

on

and

bit

effectively

of denials of qualified

alleged factual disputes

a number

and

of others

about intent; but

have resisted

granting

immunity based

this circuit

that course.2

More

____________________

2Compare
_______

Walker
______

v.

Schwalbe, 112
________

(11th Cir. 1997) and Blue v.

___ ____
n.6

(2d Cir.

F.3d

1127, 1131-32

Koren, 72 F.3d 1075, 1083-84

_____

1995) (exercising

-8-8-

pendent jurisdiction)

&

with
____

inventively,

the District

developed

heightened pleading

claims, recently

and

of

Columbia

Circuit, which

standard

abandoned it in favor of

convincing evidence" standard of proof.

for

had

such motive

imposing a "clear

Crawford-El, 93
___________

F.3d at 818, 823.

Because

Crawford-El,
___________

the

Supreme

an answer to

but we need not hazard our

the

present case,

Court

has

granted

the quandary may

review

be forthcoming,

own guess about the outcome.

Maigret and

Sweet

in

did not

ask for

In

any

special

evidentiary

court--but

merely

qualified immunity.

standard

for

to be

summary

used

judgment

in

the district

granting

The district court denied it because

perceived factual dispute,

and under Johnson

_______

cannot be reviewed on interlocutory appeal.

Appeal dismissed.
________________

them

of

that ruling

____________________

Berdec a-P rez

______________
1995) and
___

v. Zayas-Green, 111
___________

Chateaubriand v.
_____________

F.3d 183, 184

Gaspard, 97
_______

F.3d 1218,

(1st Cir.
1223-24

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

___ ________
____________________
367, 370-71

(10th Cir. 1996),

(1997).

-9-9-

cert. denied, 117 S.

____________

Ct. 740