### REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-20326

_______________

BARBARA COLEMAN,

Plaintiff-Appellee,

VERSUS

HOUSTON INDEPENDENT SCHOOL DISTRICT, et al.,

Defendants,

ANITA ELLIS,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

May 19, 1997

Before REYNA LDO G. GARZA, SMITH, and EMILIO M. GARZA, Circuit

Judges.

JERRY E. SMITH, Circuit Judge:

Defendant Anita Ellis takes this interlocutory appeal from the

denial of her partial motion for summary judgment, contending that

she is entitled to qualified immunity from suit in her personal

capacity. Concluding that plaintiff Barbara Coleman has failed to

demonstrate that Ellis violated a clearly established constitu-2

tional right, as required by Siegert v. Gilley

, 500 U.S. 226

(1991), we reverse.

I.

In 1994, Ellis was the principal at Ryan Middle School

(“Ryan”), an institution within the defendant Houston Independent

School District (“HISD”). When the position of assistant principal

became available, Ellis informed Co leman, with whom she was

previously acquainted, of the opening. Coleman, who is white,

interviewed for the p osition and assured the committee that she

could write and speak Spanish, which Ellis considered a prerequisite for the assistant principal in the bilingual environment at

the school. Thereafter, Ellis recommended that Coleman be

appointed assistant principal.

Ellis sent her re c ommendation to Andre Hornsby, district

superintendent of HIS D with supervisory authority over Ryan. By

affidavit, Hornsby testified that soon after receiving the

recommendation, he obtained information from another school

district administrator discrediting Coleman’s qualifications.

Because this communication allegedly raised concerns that Coleman

was not actually bilingual, as she had promised, Horn sby was

reluctant to place Coleman permanently in the position of assistant

principal. Therefore, at Hornsby's request, Ellis and Hornsby

agreed to appoint Coleman to the po sition of “acting” assistant

principal, thereby afford ing them an opportunity to evaluate her

performance during the remainder of the 1994-95 academic year.3

Coleman served as “acting” assistant principal at Ryan during

the spring semester of that year. The parties hotly dispute

whether her performance was satisfactory. By affidavit, Ellis

testified that Coleman failed to demonstrate a functional fluency

in Spanish during the course of the semester, w ith adverse

consequences for relations between the administration and the

student body. Coleman emphatically denied these charges, insisting

that she had adequately demonstrated fluency in Spani sh; allegations to the contrary, she claims, are merely a pretext for

impermissible racial discrimination.

Regardless of her performance as “acting” assistant principal,

Coleman admits that Ellis notified her in early June 1995 that she

intended to recommend Coleman for the assistant principal position,

and Ellis simultaneously requested that Coleman begin drafting the

papers necessary for the permanent appointment. On June 14, 1995,

however, Hornsby advised Coleman that she would not receive a

p ermanent appointment as assistant principal at Ryan. Coleman

alleges that Hornsby explained it was necessary for him to hire an

Hispanic as the assistant principal; Hornsby vehemently denies the

allegation, claiming that he merely a dvised Coleman that the new

assistant principal must be bilingual, a qualification Coleman had

not adequately demonstrated during her tenure as “acting” assistant

principal.

Believing herself to be the victim of unlawful racial

discrimination, Coleman f iled suit against HISD, Ellis, Hornsby,

and Parlee Crawford, naming the i ndividual defendants in their1 The complaint alleged two independent acts of unlawful discrimination:

first, the denial of promotion to the position of permanent assistant principal

at Ryan, and secon d, the denial of appointment to the position of assistant

principal at Jones High School. While the HISD and Hornsby were named as

responsible defendants in both incidents, Ellis was named only in the specific

allegations concerning Ryan, and Crawford was named only in the alleg ations

concerning Jones High School.

4 official and individual capacities. 1 Coleman alleged that defendants' actions constituted unlawful racial and nati onal origin

discrimination in violation of the Equal Protection Clause and

42 U.S.C §§ 1981 and 1983 and conspiracy to discriminate against

her in violation of 42 U.S.C. § 1985.

The individual defendants pleaded the affirmative defense of

qualified immunit y and, after limited discovery, filed a partial

motion for summary judgment on that basis. The district court

granted summary judgment to Crawford and Hornsb y concerning the

allegations of discrimination at Jones High School but denied

qualified immunity to Ellis and Hornsby concerning the allegations

of discrimination at Ryan. Ellis alone appeals the denial of

qualified immunity.

II.

Before reaching the merits, we must determine whether we have

appellate jurisdiction in this interl o cutory appeal. Coleman

claims that the order denying qualified immunity to Ellis was an

interlocutory o rder, based on the sufficiency of the evidence,

which is not appealable. We disagree.

A.5

District court orders denying summary judgment on the basis of

qualified immunity are immediately appealable under the collateral

order doctrine, notwithstanding their interlocutory character, when

based on a conclusion of law. S ee Mi tchell v. Forsyth , 472 U.S.

511, 530 (1985). In contrast, such orders are not immediately

appealable if they are based on sufficiency of the evidence. See

Johnson v. Jones

, 115 S. Ct. 2151, 2156 (1995). Therefore, orders

denying qualified immunity are immediately appealable only if they

are predicated on pure co nclusions of law, and not if a “genuine

issue of material fact” precludes summary judgment on the question

of qualified immunity. We reject Coleman's assertion that the

instant case falls in the latter category.

The Supreme Court has recently clarified this distinction in

Behrens v. Pelletier

, 116 S. Ct. 834 (1996), explaining that the

existence of a genuine issue of material fact does not necessarily

preclude immediate appeal of an order denying qualified immunity.

Insofar as the district court order determines a question of law,

th e Court held, the denial of qualified immunity is appealable,

notwithstanding the existence of a genuine issue of material fact.

“ Johnson permits petitioner to claim on appeal that all of the

conduct which the District Court deemed sufficiently supported for

purposes of summary judgment met the Harlow standard of 'objective

legal reasonableness.'” I d

. at 842; see also Harlow v. Fitzgerald

,

457 U.S. 800 (1982) (articulating the test for qualified immunity);

accord Hare v. City of Co rinth , 74 F.3d 633, 638 (5th Cir. 1996)

(en banc).6

Assumed facts are treated as undisputed facts in t his

analysis. In the aftermath of J ones and Behrens

, we retain

interlocutory jurisdiction to “take, as given, the facts that the

district court assumed when it denied summary judgm ent,” J ones

,

115 S. Ct. at 2159, and to determine whether those facts are

sufficient to state a claim under clearly established law, Nerren

v. Livingston Police Dep’t

, 86 F.3d 469, 472 (5th Cir. 1996); Cantu

v. Rocha

, 77 F.3d 795, 802-03 (5th Cir. 1996). “Denial of summary

judgment on the g round of qualified immunity is immediately

appealable to the extent that the question on appeal is whether the

undisputed facts amount to a violation of clearly established law.”

Kelly v. Foti , 77 F.3d 819, 821 (5th Cir. 1996).

Ellis does not challenge the sufficiency of the evidence

underlying Coleman’s allegations of discrimination. Instead,

taking as given the facts assumed by the district court, Ellis

claims that she is en titled to qualified immunity as a matter of

law, because those assumed facts do not constitute a violation of

clearly established federal law. Therefore, under the rule of

Jones and Behrens

, we may exercise appellate jurisdiction over this

interlocutory appeal, for in doing so we do not decide the

sufficiency of the evidence, nor do we decide disputed factual

contentions.

B.

We must next identify wh at facts the district court assumed

when it denied summary judgment. This is no easy task in the7

instant case. Unfortunately, because the court neither entered a

written order denying Ellis qualified immunity, nor specified its

factual assumptions for the record, we must “undertake a cumbersome

review of the record to determine what facts the district court, in

the light most favorable to the nonmoving party, likely assumed.”

Jones , 115 S. Ct. at 2159; accord Behrens , 116 S. Ct. at 842.

The grounds upo n which the district court denied qualified

immunity emerge from a close review of the record. Of paramount

importance is the fact that the court did not deny summary judgment

because a genuine iss ue of material fact existed concerning the

allegations that Ellis intentionally discriminated against Coleman.

To the contrary, the court assumed that Hornsby, “from all of the

evidence, is the principal active administrator” in the contested

employment de cisions, whereas Ellis was merely the instrument of

his will. As the district court explained:

The evidence suggests, that is before me now and it

is clearly not fully developed, that under pressure from

her sup eriors, Ellis bent to his purpose. Whether she

bent far enough to be ultimately liable, I have no idea

at this stage. It seems clear that under circumstances

which are understandably difficult for her, she was

caught between an assistant princ ipal and a deputy

district superintendent. I believe that the case must

continue against those two individuals.

And Ms. Ellis, this just may be one more illustration that no good deed goes unpunished. If you hadn’t

recommended her in the first place, you wouldn’t be here.

But unfortunately , I think you’ve gotten caught in the

cross-fire. But jurisprudence is that you cannot accede

to a superior’s position if it turns out to be unlawful.

Consequently, the court denied qualified immunity to both Hornsby

and Ellis, because a genuine issue of material fact existed as to2 Throughout the summary judgment hearing concerning qualified immunity,

the court expressed its opinion that Hornsby, not Ellis, was the principal actor

who had initiated the contested employment decisions. “The motivation may be in

question,” the district court said, “but the motivation, if it was, was Hornsby’s

motivation.” Elsewhere, the court noted that “Hornsby apparently had an agenda

different from Ellis’ and acted on it.”

3 The court characterized El lis as an “accessory after the fact” and

suggested that her position was tantamount to the “Nuremberg defense.” Indeed,

the court expressly rejected allegations that Ellis had intentionally discriminated against Coleman, concluding that “frankly, Ellis’s role seems to have been

far more supportive than derogatory than [sic] Coleman’s efforts. She gets

caught between Hornsby and Coleman at some point.”

4 Given the interlocutory nature of this appeal, we express no opinion as

to whether the district court c orrectly characterized Hornsby's and Ellis's

relative responsibilities fo r the contested employment decisions. Indeed,

because such a determination would require us to evaluate the sufficiency of the

evidence underlying the claim, we would not have jurisdiction to engage in such

an inquiry. S ee Jones

, 115 S. Ct. at 2156; Cantu

, 77 F.3d at 802-03. Instead,

we merely recount the assumptions articulated by the district court, for the

limited purpose of making the purely legal determi nation of whether the facts

assumed amount to a violation of clearly established law. See Nerren , 86 F.3d

at 472; see also Behrens

, 116 S. Ct. at 842 (authorizing courts of appeals to

determine the facts assumed by the district court for purposes of interlocutory

appeal); Jones

, 115 S. Ct. at 2159 (same). In other words, the question of

whether the district court was correct in its assumptions awaits another day.

8 whether Hornsby had engaged in intentional discrimination

. 2 “If

she responded to an illegal order,” the court opined, “the person

who gives the order and the person who obeys it and takes the

action, are both responsible and neither is protected by qualified

immunity.” 3

On appeal, E llis argues that the district court erroneously

imputed Hornsby's alleged discrimina tory intent to her, thereby

denying her qualified immunity despite the court’s assumption that

Ellis did not intentional ly discriminate against Coleman. Under

these circumstances, Ellis claims, she was en titled to summary

judgment on the basis of qualified immunity. We agree. 4

III.9

Qualified immunity shields government officials performing

discretionary functions from individual liability for civil damages

“insofar as their conduct d oes not violate clearly established

statutory or constitutional rights of which a reaso nable person

would have known.” H arlow v. Fitzgerald

, 457 U.S. 800, 818 (1982).

We review a claim of qualified immunity under a two-step process.

First, we determine whether the plaintiff has alleged the violation

of a “clea rly established constitutional right” under currently

applicable constitutional standards. If so, we consider whether

the defendant’s conduct was nevertheless “objectively reasonable.”

Nerren , 86 F.3d at 473; Kelly , 77 F.3d at 821.

In Siegert v. Gilley

, 500 U.S. 226, 231 (1991), the Court

emphasized that the threshold inquiry in a qualified immunity case

is whether the plaintiff has sufficiently alleged the violation of

a clearly established constitutional right. If not, summary

judgment is appropriate, and the case should be dismissed.

Furthermore, “[a] necessary concomitant to the determination

of whether the constitutional right asserted by a plaintiff is

'clearly established' at the time the defendant acted is the

determination of whether the plaintiff has asserted a violation of

a constitutional right at all.” Id . at 232. Because we conclude

that Coleman failed to a llege the violation of a constitutional

right by Ellis, insofar as any of Hornsby's actions are imputed to

Ellis, the district court erred in failing to grant summary

judgment on the basis of those assumed facts.10 A.

We review the denial of s ummary judgment d e novo

. H anks v.

Transcontinental Gas Pipe Line Corp. , 953 F.2d 996, 997 (5th Cir.

1992). Summary judgment is appropriate only “if the pleadings,

depositio ns, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgm ent as a matter of law.” F E D

. R. C IV

. P. 56(c). The

party seeking summary judgment bears the burden of showing that

there is an absence of evidence to support the non-movant’s case.

Celotex Corp. v. Catrett

, 477 U.S. 317, 325 (1986). After a proper

motion for summary judgment is made, the non-movant must set forth

specific facts showing that there is a genuine issue for trial.

Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986).

We view facts in the light most favorable to the non-movant

and draw all reasonable inferences in her favor. B rothers v.

Klevenhagen , 28 F.3d 452, 455 (5th Cir. 1994). If the non-movant

sets forth specific facts in support of allegations essential to

her claim, a genuine issue of material fact is presented, and

summary judgment is inappropriate. Id.

B.

In order to state a claim of racial discrimination under the

Equal Protection Clause and § 1983, a plaintiff must demonstrate

that the governmental of ficial was motivated by intentional

discrimination on the basis of race. S ee Washington v. Davis

, 42611

U.S. 229, 238-42 (1976); Vera v. Tue

, 73 F.3d 604, 609 (5 th Cir.

1996). “Proof of racially discriminatory intent or purpose is

required to show a violation of the Equa l Protection Clause.”

Village of Arlington Heights v. Metro politan Housing Dev. Corp.

,

429 U.S. 252, 265 (1977).

Likewise, a cause of action for racial discrimination in the

making and enforcement of contracts, under § 1981, requires the

plaintiff to demonstrate intentional discrimination. General Bldg.

Contractors Ass’n v. Pennsylvania

, 458 U.S. 375, 391 (1982);

National Ass’n of Gov’t Employees v. City Pub. Servs. Bd.

, 40 F.3d

698, 714 (5th Cir. 1994). Finally, to recover damages for a

conspiracy to deny individuals t he equal protection of the laws

under § 1985 the plaintiff must demonstrate that the defendants

were motivated by an invidious discriminatory animus. Griffin v.

Breckenridge , 403 U.S. 88, 102 (1971); Almon v. Sandlin , 603 F.2d

503, 505 (5th Cir. 1979).

Consequently, to assert a violation of a constitutional right,

Coleman must prove that Ellis intentionally discriminated against

her on the basis of race. Invidious discriminatory animus is the

sine qua non of a constitutional clai m of racial discrimination.

In the instant case, however, this necessary prerequisite has not

been satisfied SS at least, not on the basis of the district court's

assumed facts that form the only basis for this appeal.

The district court assumed, for purposes of summary judgment,

that Ellis did n ot discriminate intentionally against Col eman.

Indeed, the court expressly rejected any allegation that Ellis had12

been motivated by an invidious discriminatory animus. Instead, the

court assumed that Ellis had acted not o f her own volition, but

merely as Hornsby's unwitting (or unwilling) instrument.

We need not determine whether this factual assumption was

accurate; indeed, as we have previously discussed, we do not have

appellate jurisdiction to review the sufficiency of the evidence.

Jones

, 115 S. Ct. at 2156; Nerren

, 86 F.3d at 472. For purposes of

this interlocutory appeal, we are obliged to take, as given, the

facts the district court assumed, and our inquiry is limited to the

narrow question of whether those facts are sufficient to state a

claim under clearly established law. Behrens , 116 S. Ct. at 842;

Nerren , 86 F.3d at 472. Because the court assumed that Ellis did

not discriminate intentionally against Coleman, the necessary

prerequisite to a constitutional claim of racial discrimination was

not satisfied, and therefore the facts assumed were not sufficient

to state a claim of racial discrimination under clearly established

law.

Nevertheless, although it assumed that Ellis had not discriminated intentionally against Coleman, th e court refused to grant

E llis qualified immunity, solely because a genuine issu e of

material fact existed as to Hornsby's motives. The court concluded

that Hornsby's alleged discriminatory intent could properly be

imputed to Ellis, his subordinate, for purposes of the qualified

immunity inquiry. This conclusion, which would create a rule of

respondeat inferior , was both unprecedented and erroneous.

Neithe r the district court nor Coleman cites any authority,5 See

, e.g.

, Doe v. Taylor Indep. Sch. Dist

., 15 F.3d 443, 452 (5th Cir. 1994)

(en banc); Auster Oil & Gas, Inc. v. Stream

, 835 F.2d 597, 601 (5th Cir. 1988);

Lopez v. Houston Indep. Sch. Dist.

, 817 F.2d 351, 355 (5th Cir. 1987), overruled on

other grounds

, Walton v. Alexander , 44 F.3d 1297, 1303 n.4 (5th Cir. 1995) (en

banc); Kline v. North Tex. State Univ.

, 782 F. 2d 1229, 1235 (5th Cir. 1986);

Thibodeaux v. Arceneaux

, 768 F.2d 737, 739 (5th Cir. 1985). “Section 1983 will not

support a claim based on a respondeat superior theory of liability.” P olk County

v. Dodson

, 454 U.S. 312, 325 (1981); see also Jett v. Dallas Indep. Sch. Dist.

, 491

U.S. 701, 738 (1989) (holding that a school district may not be held vicariously

liable for a violation of § 1981 solely on a theory of respondeat superior ); Monell

v. Department of Social Servs.

, 436 U.S. 658, 691 (1978) (holding that a municipality may not be held vicariously liable for constitutional torts under § 1983 solely

on a theory of respondeat superior ).

13 nor are we aware of any, holding that the discriminatory intent of

one official may be imputed to another for purposes of imposing

individual liability under the civil rights laws. To the contrary,

it is firmly established that individual liability under § 1983 may

not be predicated on the vicarious liability doctrine of respondeat

superior. Only the direct acts or omissions of government

officials, not the acts of subordinates, will give rise to

individual liability under § 1983. 5 Insofar as the district court

assumed that Ellis had not discriminated intentionally against

Coleman, therefore, the necessary prerequisite to a constitutional

c laim of racial discrimination SS invidious discriminatory animus SS was

absent, and Ellis was entitled to qualified immunity.

The rule of vicarious liability apparently adopted by the

district court and advocated by Coleman is more sweeping than is

the traditional doctrine of respondeat superior. S uch an unprecedented rule of vicarious liability would impose individual

liability upon subordinates for the acts and omissions of superior s, over whom they have neither control nor authority, thereby

creating a new liability theory of respondeat inferior

. As the

Tenth Circuit , the only court previously to confront this novel14

theory of vicarious liability, has explained,

we know of no authority for imput ing a principal’s

discriminatory intent to an agent to make the agent

liable for his otherwise neutral business decision.

Similarly, while discriminatory practices of an agent may

be imputed back to a principal to render the principal

liable for its agent’s statutory violatio ns, we have

found no authority for imputing statutory liabili ty in

the opposite direction, from a culpable principal to an

innocent agent.

Brownlee v. Lear Siegler Management Servs. Corp

., 15 F.3d 976, 978

(10th Cir. 1994) (citation and footnote omitted); see also Haynes

v. Williams , 88 F.3d 898, 899-900 (10th Cir. 1996).

Therefore, in light of the federal courts' refusa l to

recognize even traditional respondeat superior liability under

§ 1983, the district cour t erred in endorsing a new theory of

respondeat inferior liability. Accordingly, Ellis was entitled to

qualified immunity under the assumed facts.

IV.

Finally, we emphasize that our decision in this interlocutory

appeal is limited to the narrow legal proposition that a district

c ourt may not impute the alleged discriminatory motivations of a

superior to a subordinate for purpose s of the qualified immunity

analysis. We reaffirm that individual liability under § 1983 is

predicated on the acts or omissions of the re spective individual

defendant, and the principles of vicar ious liability S S whether the

classic rule of respondeat superior or the novel rule of respondeat

inferior SS are inapposite to constitutional claims of discrimination.6 Indeed, as we have said, because such a determination would require us

to evaluate the sufficiency of the evidence underlying the claim, we would not

have jurisdiction to engage in such an inquiry on an interlocutory appeal from

a denial of summary judgment o n the basis of qualified immunity. S ee Jones

, 115 S. Ct. at 2156; Cantu , 77 F.3d at 802-03.

7 Because the determination of whether a plaintiff has alleged a violation

of a clearly established constitutio nal right is the first inquiry in the

qualified immunity calculus, we need not consider Ellis’s remain ing claims in

this appeal. See Siegert , 500 U.S. at 227.

15 For purposes of this interlocutory appeal, we are obliged to

take, as given, the facts assumed by the district court, and to

determine whether they state a claim under clearly established law.

Therefore, we opine only that the district court erred in concluding that the alleged discriminatory motivations of Hornsby could be

imputed to Ellis for purposes of the qualified immunity analysis,

and we express no opinion as to whether the court erred in assuming

that Ellis did not intentionally discriminate against Coleman; nor

do we consider whether a genuine issue of material fact exists

concerning the allega tions of intentional discrimination on the

part of Ellis. 6 On remand, the district court is free to entertain

this alternate ground for denying qualified immunity.

V.

The order denying qualified immunity is REVERSED, and this

case is REMANDED with instructions to dismiss all claims pending

against Ellis in her individu al capacity, unless it should

otherwise appear that qualified immunity is inappropriate. 78 Accordingly, I agree with the majority that we have appellate jurisdiction to decide this interlocutory appeal. See Johnson v. Jones , ___ U.S. ___,

115 S. Ct. 2151, 132 L. Ed. 2d 238 (1995). I question, however, the majority’s

continuous use of “assumed” facts because of the danger it may be misconstrued

to pervert basic summary judgment law that requires a summary judgment record.

See F ED

. R. C IV

. P. 56(c). Clearly, in J ones

, the Supreme Court was referring to

the summary judgment record when it stated “the court of appeals can simply take,

as given, the facts that the district cour t assumed when it denied summary

judgment for that (purely legal) reason.” S ee Jones

, 115 S. Ct. at 2159 (“[W]e

hold that a defendant, entitled to invoke a qualified-immunity defense, may not

appeal a district court’s summary judgment order insofar as that order determines

whether or not the pretrial record sets forth a < genuine’ issue of fact for

trial.”)(emphasis added). EMILIO M. GARZA, Circuit Judge, specially concurring:

The district court committed two fundamental legal errors. 8

First, the “district court assumed, for purposes of summary

judgment, that Ellis did not discriminate intentionally against

Coleman,” without considering the evidence before it. By doing so

it violated a basic principle of summary judgment law: At the

summary judgment stage, we look at the summary judgment record in

the light most favorable to the non-movant, not the movant, in this

case, Ellis. S ee Williams v. Time Warner Operation, Inc.

, 98 F.3d

179, 181 (5th Cir. 1996).

Furthermore, by doing so, the district court passed over the

only material issue of fact before the district court: “[T]he s ine

qua non of a constitutional claim of racial discrimination” ) ) the

invidious discriminatory animus, if any, of Ellis. Coleman had “to

assert a violation of a constitutional right, [that is ] Coleman

[had to] prove that Ellis intentionally discriminated against her

on the basis of race.” Instead, the district court held “that

Hornsby’s alleged discriminatory intent could properly be imputed

to Ellis, his subordinate.” Obviously, “[s]ummary judgment is-17-

appropriate only < if the pleadings, deposit ions, answers to

interrogatories, and admission on file, together with affidavits,

if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of

law.’ Fed. R. Civ. 56(c).” Because I agree with the majority that

“a rule of respondent inferior [is] both unprecedented and

erroneous,” under Rule 56, it is also not a material issue of fact.

See Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 248, 106 S. Ct.

2 505, 2510, 91 L. Ed. 2d 202 (1986) (“As to materiali ty, the

substantive law will identify which facts are material.”).

For these reasons, I concur in the judgment of the court.