UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30958

Summary Calendar

GREGORY JOHNSON,

Plaintiff-Appellee,

versus

LOUISIANA, STATE OF, Department

of Public Safety and Corrections,

Defendant

PAUL W. FONTENOT, Deputy Secretary,

Department of Public Safety and Corrections;

JOHN WATSON, Sergeant, Department of

Public Safety and Corrections; LINDA CLARK,

Motor Vehicle Officer; SHIRLEY ARMSTRONG,

Vehicle Officer; JEFFREY K. WATTS, Trooper,

Defendants-Appellants.

Appeal from the United States District Court

For the Eastern District of Louisiana

(95-CV-4079-C)

March 24, 1997

Before POLITZ, Chief Judge, KING and PARKER, Circuit Judges.* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in Local Rule

47.5.4.

2 POLITZ, Chief Judge: *

Defendants Paul Fontenot, John Watson, Linda Clark, Shirley Armstrong,

and Jeffrey Watts appeal the district court’s refusal to grant their motion to dismiss

Gregory Johnson’s 42 U.S.C. § 1983 claim on the grounds of qualified immunity.

For the reasons assigned, we dismiss their appeal.

Johnson was employed b y the Louisiana Department of Public Safety and

Corrections as a motor vehicle police officer from October 1989 to December

1994. Johnson alleges that on June 3, 1994 Sergeant Watson told him that he

intended to fondle Officer Linda Clark’s breasts. Later that day Johnson asked

Clark whether Watson had tried to touch her. Clark initially said that he had not,

but the next day Johnson claims that she said otherwise. Johnson urged Clark to

report the incident but she refused, not wishing to deal with the questions and

embarrassment associated with making such a repor t. Johnson claims that on

July 25, 1994 Officer Shirley Armstrong came into his office and, in the presence

of Officer Bertney Williams, corroborated Clark’s earlier admission and said that

Watson had attempted again to touch Clark’s breasts.

Johnson and several ot her officers complained to the Internal Affairs3

Division of the Department about Watson’s inappropriate behavior towards Clark.

When questioned, Clark denied that Watson had tried to touch her breasts. Johnson

requested an investigation whic h concluded that his allegations were false.

Fontenot, Deputy Secretary of the Department, then orde red an investigation of

Johnson, appointing Watts to the task. After interviewing Clark, Armstrong,

Johnson, and Of

ficer Theresa Gendusa, Watts concluded that Johnson had

fabricated the allegations of sexual harassment. Fontenot terminated Johnson’s

employment on December 9, 1994, doing so on the basis of Watts’ report. Johnson

complains that both investigations were faulty because there was no interview of

witnesses who would have supported his charges.

Johns on filed the instant action, invoking 42 U.S.C. §§ 1983 and 1988,

charging the defendants with violating his first and fourteenth amendment rights

by retaliating against him for speaking out on ma tters of public concern. The

district court partially granted defendants’ first motion, dismissing Johnson’s

claims against the state and the individual defendants in their off icial capacities.

The court refused, however, to dismiss the claims ag ainst the defendants in their

individual cap acities. The defendants filed a second Rule 12(b)(6) motion to

dism iss, asserting qualified immunity. The district court denied that motion and

defendants timely appealed.1 Cohen v. Beneficial Indus. Loan Corp

. , 337 U.S. 541 (1949). S ee also Johnson v.

Jones

, 115 S.Ct. 2151 (1995); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc. , 506 U.S. 139 (1993).

2 472 U.S. 511 (1985).

3 Id. at 528.

4 We must first determine whether we have jurisdiction to review the district

court’s denial of the defendants’ motion to dismiss which was based on their claim

of qualified immunity. We typically lack jurisdiction to review the denial of a

Rule 12(b)(6) motion because such an order is interlocut ory. Under the C ohen 1

collateral order doctrine, howeve r, a district court’s decision is appealable if it:

(1) conclusively determines the disputed question, (2) resolves an important issue

that is separated completely from the merits of the case, and (3) effectively would

be unreviewable on appeal from a final judgment. In M itchell v. Forsyth

, 2 the

Supreme Court carved out special tr eatment for appeal of the denial of a

defendant’s motion to dismiss on the ground of qualified immunity, stating:

An appellate court reviewing the denial of the defendant’s claim of

immunity need not consider the correctness of the plaintiff’s version

of the facts, n or even determine whether the plaintiff’s allegations

actually state a claim. All it need determine is a question of law:

whether the legal norms allegedly violated by the defendant were

clearly established at the time of the challenged actions . . . . 3

In Johnson v. Jones, the Court clarified the Cohen doctrine within the context of4 Johnson at 2156.

5 Id.

6 Id. at 2158.

5 qualified immunity. J ohnson concluded that the district court’s denial of summary

judgment in a qualified immunity case was not appealable when it determined only

a question of evidence sufficiency. 4 The Court explained that when a defendant

challenges the district cou rt’s determination that the evidence is sufficient to permit

a particular finding of fact after trial, the question is too similar to the fact-related

legal issues that underlie the plaintiff’s claim to satisfy Cohen ’s separability

requirement. 5 The Court also noted that an interlocutory appeal of this kind would

be an unwise use of judicial resources because the appellate court likely would face

the same or a very similar issue in a successive appeal. 6

In the instant case, appellants assert that the district court’s order is

appealable because Johnson “failed to s tate a violation of a clearly established

statutory or consti tutional right.” They claim that they are entitled to qualified

immunity “because it is not clearly established that a public employee may pursue

false allegations of sexual harassment and d isrupt the work environment.”

Although purporting to challenge the district court’s order on a question of law,

appellants actually are disputing the court’s evidentiary evaluation.7 Wilson v. UT Health Ctr.

, 973 F.2d 1263 (5th Cir. 1992), cert

. denied

, 507 S.Ct. 1004

(1993).

6 The district court found that Johnson a lleged facts sufficient to establish a

claim under section 1983. Appellants’ attempt to characterize the appeal as one

based exclusively on the existence or nonexistence of a clearly established right,

as it must be to be appealable, is not per suasive. We have held that the first

amendment protects a public employee’s reports of sexual harassment, if found to

be made in good faith, because maintaining a police force free from the adverse

effects of sexual harassment is a matter of public concern. 7 Johnson has alleged a

violation of a clearly established rule. We have before us an evidentiary dispute;

this appeal is, accordingly, DISMISSED.