1 42 U.S.C. § 2000e.

1 United States Court of Appeals,

Fifth Circuit.

No. 95-40266

Summary Calendar.

Wilfred Waylon JACKSON, Plaintiff-Appellee,

v.

CITY OF ATLANTA, TX., et al., Defendants,

Jim Long, Individually and in his capacity as City Manager, et

al., Defendants-Appellants.

Jan. 24, 1996.

Appeal from the United States District Court for the Eastern

District of Texas.

Before WIENER, PARKER and DENNIS, Circuit Judges.

PER CURIAM:

Plaintiff-Appellee Wilfred Waylon Jackson sued the City of

Atlanta, Texas, as well as its city manager and several of its city

councilmen individually, asserting, inter alia, claims of

discrimination under bo t h Title VII 1 and 42 U.S.C. § 1983. Based

on immunity, the city manager and city councilmen (Defendants)—but

not the City of Atlanta—filed motions to dismiss or, in the

alternative, for summary judgment. Defendants appeal the district

court's denial of these motions. We dismiss the appeal, in part,

and reverse and remand, in part.

I

FACTS AND PROCEEDINGS

In April 1989, Atlanta promoted Jackson, a black male, to the2 Jackson also asserted supplemental state law claims for

defamation and intentional infliction of emotional distress. As

this is an interlocutory appeal of an immunity defense to a §

1983 claim, we have no jurisdiction over those issues at this

early juncture in the litigation. See Tamez v. City of San

Marcos, Tx., 62 F.3d 123, 124 (5th Cir.1995).

2 position of Fire Chief in the Atlanta Fire Department (Department).

In December 1992, Jackson was terminated by Jim Long, the city

manager. In explanation, Long cited animosity, low morale, and

disharmony within the Department. Additionally, Long cited

Jackson's refusal to allow a subordinate to use the Department's

vehicle that is a ssigned to the Fire Chief. Jackson, the only

black department head in Atlanta, th ought that racial prejudice

might have motivated his termination and requested a hearing before

the Atlanta City Council (Council). After hearing his complaints

in executive session, the Council announced that it had voted not

to reinstate Jackson.

Jackson then filed the instant suit in federal district court,

alleging, inter alia, causes of action fo r racial discrimination

under both Ti tle VII and § 1983. 2 Jackson does not dispute that

these two federal claims arise out of identical fact situations and

identical allegations of racial discrimination. On both claims,

the Defendants filed motions to dismiss for failure to state a

claim or, in the alternative, for a summary judgment of dismissal.

With respect to the § 1983 claim, these motions were based on

qualified immunity. The district court denied all motions, stating

that (1) Jackson had stated claims under both Title VII and § 1983,

and (2) the existence of genuine issues of fact precluded summary3 Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987) ("This

Court must examine the basis of its jurisdiction, on its own

motion, if necessary.").

4 See Sorey v. Kellett, 849 F.2d 960, 961 (5th Cir.1988)

("Under 28 U.S.C. § 1291, the courts of appeals have jurisdiction

over "final decisions' of the district courts. Ordinarily, this

section precludes review of a district court's pretrial orders

until appeal from the final judgment.").

3 judgment on both claims. The Defendants timely filed this

interlocutory appeal.

II

DISCUSSION

A. J URISDICTION

Before addre ssing the substantive issues in this appeal, we

examine the basis for our jurisdiction. 3 On appeal, the Defendants

challenge two aspects of the district court's order: First, they

urge that the Title VII claims against them should have been

d ismissed, through either Rule 12(b)(6) or summary judgment. In

like manner, they contend that the § 1983 claims against them

should have been dismissed, through either Rule 12(b)(6) or summary

judgment based on qualified immunity.

Generally, we do not have interlocutory jurisdiction over the

d enial of either a motion to dismiss or a motion for summary

judgment, as such pretrial orders are not "final decisions" for the

purposes of 28 U.S.C. § 1291. 4 Denials of motions to dismiss and

motions for summary judgment in the Title VII context are non-final

pretrial orders. Consequently, in this interlocutory appeal, we do

not have jurisdiction to review the district court's order denying

the Defendants' pretrial motions to dismiss or for summary judgment5 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

6 Id. at 530, 105 S.Ct. at 2817-18; see also Hale v.

Townley, 45 F.3d 914, 918 (5th Cir.1995) ("An appellate court has

jurisdiction to review an interlocutory denial of qualified

immunity only to the extent that it "turns on an issue of law.' "

(quoting Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817-18)).

In Mitchell, the Court held that a district court's

order denying a defendant's motion for summary judgment was

an immediately appealable collateral order under Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221,

93 L.Ed. 1528 (1949), where (1) the defendant was a public

official asserting a defense of immunity, and (2) the issue

appealed concerned whether or not certain given facts showed

a violation of clearly established law. Mitchell, 472 U.S.

at 528, 105 S.Ct. at 2816-17.

7 Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132

L.Ed.2d 238 (1995).

8 Id. at ----, 115 S.Ct. at 2156 (holding 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

4 in Jackson's Title VII claims. We neither express nor imply an

opinion on the merits of Jackson's Title VII claims; we simply

d ismiss the Title VII facet of this appeal for lack of appellate

jurisdiction and remand these claims for further proceedings.

Jackson's § 1983 claims are another matter altogether. In

Mitchell v. Forsyth, 5 the Supreme C ourt held that "a district

court's denial of a claim of qualified immunity, to the extent that

it turns on an issue of law, is an appealable "final decision'

within the meaning of 28 U.S.C. § 1291 notwithstanding the absence

of a final judgment." 6 Recently, in J ohnson v. Jones, 7 the Supreme

Court made clear that our interlocutory jurisdiction under Mitchell

begins and ends with the "purely legal" aspects of qu alified

immunity. 8 In J ohnson, the Supreme Court reiterated the dichotomy"genuine' issue of fact for trial") (emphasis added).

9 Id. at ----, 115 S.Ct. at 2158.

10 Id. at ----, 115 S.Ct. at 2159.

11 Tamez, 62 F.3d at 125 ("The Court in Johnson held 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.") (quotations and

citations omitted); Buonocore v. Harris, 65 F.3d 347, 360 (4th

Cir.1995) ("The Jones court made it clear that appellate

jurisdiction over [purely legal issues] should not be regarded as

a basis for exercising pendant jurisdiction over fact-related

qualified immunity questions."); Babb v. Lake City Community

College, 66 F.3d 270 (11th Cir.1995) ("A district court's order

on qualified immunity which determines only a question of

"evidence sufficiency' regarding plaintiff's claim is not

appealable.").

5 in the grounds for denying a motion for summary judgment based on

qualified imm unity: "(a) a determination about pre-existing

"clearly established' law, or (b) a determination about "genuine'

issues of fact for trial." 9 The Court then held that we have

jurisdiction over the former, a purely-law-based denial of

qualified immunity, but that we hav e no jurisdiction over the

latter, a genuine-issue-of-fact-based denial of qualified

immunity. 10 It follows that when we determine that a district

court's order denying qua lified immunity turns on "purely legal"

grounds, we have jurisdiction to review it; but, when the district

court's denial turns on the existence of a factual dispute, we have

no jurisdiction and must dismiss the appeal. 11

B. W HEN § 1983 AND T ITLE VII M EET

Asserting a "purely legal" error, the Defendants contend that

allegations of discriminatory treatment in connection with public12 737 F.2d 1418 (5th Cir.1984).

13 Id. at 1429; see also Grady v. El Paso Community College,

979 F.2d 1111, 1113 (5th Cir.1992) ("[A] violation of Title VII

cannot support a § 1983 suit.").

In Johnston v. Harris County Flood Control Dist., 869

F.2d 1565 (5th Cir.1989), cert. denied, 493 U.S. 1019, 110

S.Ct. 718, 107 L.Ed.2d 738 (1990), we qualified our position

in Irby

by holding that a plaintiff could pursue a remedy

under § 1983 as well as under Title VII when the employer's

conduct violates both Title VII and a separate

constitutional or statutory right. As Jackson alleges

racial discrimination as the sole basis for his § 1983

claim, he has not identified a separate constitutional or

statutory right and thus Johnston is inapplicable.

14 Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1,

28, 101 S.Ct. 1531, 1545-46, 67 L.Ed.2d 694 (1981).

15 Id. (citations omitted).

16 Irby, 737 F.2d at 1429.

6 employment that form the basis of a Title VII claim cannot form the

basis of a second, separate claim under § 1983 as well. We agree.

I n Irby v. Smith, 1 2 we held that a violation of Title VII cannot

also support a § 1983 suit. 13 Section 1983 does not create any

substantive rights; it creates only a remedy for the violation of

a substantive federal right. 14 Thus, § 1983 is not available when

"the governing statute provides an exclusive remedy for violations

of its terms." 15

The governing statute, Title VII in this case, provides

Jackson's exclusive remedy. 16 Congress intended for Title VII—with

its own substantive requirements, procedural rules, and remedies—to

be the exclusive means by which an employee may pursue a

discrimination claim. Allowing a plaintiff to state a

discrimination claim under § 1983 as well would enable him to17 See Irby, 737 F.2d at 1429. For example, § 1983

authorizes compensatory and punitive damages, which in many cases

are not available in a Title VII case. Id.

18 See, e.g., Barker v. Norman, 651 F.2d 1107, 1120 (5th Cir.

Unit A 1981).

7 sidestep the detailed and specific provisions of Title VII. 1 7 In

denying Defendants' motion to dismiss Jackson's Title VII claims

under Rule 12(b)(6), the district court necessarily determined that

Jackson's allegations of racial discr imination are sufficient to

establish a clear violation of Title VII and thus a clear

deprivation of a federal right. Consequently, § 1983 is not

available to Jackson for either alternative or additional relief.

As Jackson thus has no access to a remedy under § 1983, it follows

that he may not assert su ch a claim. Thus, Jackson's putative §

1983 claims, arising as they do from precisely the same allegedly

discriminatory acts as do his Title VII claims, should have been

dismissed. Accordingly, we remand Jackson's § 1983 claims against

the Defendants to the district co urt with the instruction to

dismiss them.

C. O THER A LLEGED E RRORS

The Defendants urge an additional error which has now been

rendered moot by our holding in the preceding paragraph. We refer

to the Defendants' insistence that, in addition to qu alified

immunity, they are entitled to absolute legislative immunity. It

is well established that immunity, be it absolute or qualified, is

an affirmative defense available to public officials sued under §

1983. 18 As we remand Jackson's § 1983 claims with instructions for8

their dismissal, the De fendants no longer need the shelter of

absolute immunity. Accordingly, we dismiss as moot all appellate

i ssues arising from the Defendants' assertion of the affirmative

defense of absolute immunity.

III

CONCLUSION

For the forgoing reasons, the Defendants' interlocutory appeal

of the district court's refusal to dismiss Jackson's Title VII

claims are DISMISSED for want of jurisdiction. The same fate is

appropriate for Defendants' defense of absolute immunity, albeit on

grounds o f mootness. The district court's order denying

Defendants' motion to dismiss Jackson's § 1983 claims, however, is

REVERSED and REMANDED with instruct ions to dismiss such claims

against the Defendants.

DISMISSED in part; REVERSED and REMANDED in part.