UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

BRENDA TAITE, 

 Plaintiff - Appellee, 

v. 

THERESA RAMOS, individually and in 

her official capacity, 

 Defendant - Appellant, 

and 

UNIVERSITY OF NEW MEXICO 

BOARD OF REGENTS, 

 Defendant. 

No. 14-2220 

(D.C. No. 1:13-CV-00792-JAP-RHS) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges. 

_________________________________ 

Theresa Ramos appeals the district court’s denial of summary judgment as to 

Brenda Taite’s claims against her under 42 U.S.C. §§ 1981 and 1983. We lack 

jurisdiction in this interlocutory appeal to review the order concerning the § 1981 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

July 8, 2015

Elisabeth A. Shumaker 

Clerk of Court

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claim and therefore dismiss the appeal as to that claim. We reverse and remand the 

order as to the § 1983 claim for further proceedings. 

BACKGROUND 

In April 2012, Ms. Taite was hired as an Equal Opportunity Specialist with the 

University of New Mexico’s (University) Office of Equal Opportunity. Pursuant to 

University policy, she was required to serve a six month probationary period. 

According to that policy, she could be terminated for any reason, with or without 

cause, during the probationary period. Two months into the probationary period, she 

was terminated by Ms. Ramos. 

Believing she was the victim of discrimination, Ms. Taite sued the University 

and Ms. Ramos. Relevant here, she alleged claims under §§ 1981 and 1983 and Title 

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-17. Regarding the § 1981 

and § 1983 claims, Ms. Taite’s pro se amended complaint states: “[Ms.] Ramos (sic) 

acts of race discrimination and retaliation, as well as [her] creation of a hostile work 

environment, have violated provisions of the Fourteenth Amendment of the United 

States Constitution and the plaintiff is entitled to pursue remedies under 42 U.S.C. 

Section 1981 & 1983.” Aplt. App. at 58 (emphasis added). 

The district court found that the existence of disputed material facts precluded 

summary judgment on the § 1981 claim. As to the § 1983 claim and Ms. Ramos’s 

defense of qualified immunity, the court concluded that Ms. Taite’s “right to be free 

from racial discrimination was clearly established at the time of her employment with 

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[the University],” and the existence of disputed issues of material fact likewise 

precluded summary judgment. Id. at 185. 

ANALYSIS 

The § 1981 Claim 

The district court explained that Ms. Ramos “does not seek qualified immunity 

on [Ms. Taite’s] § 1981 claims, and instead, argues that she is entitled to summary 

judgment on the § 1981 claims.” Id. at 191. Notwithstanding, Ms. Ramos maintains 

that she did seek qualified immunity and therefore this court has jurisdiction to 

review the order. We disagree. Specifically, Ms. Ramos argued that Ms. Taite’s 

“Section 1983 claims against [her] in her individual capacity are subject to dismissal 

on the basis of qualified immunity and [her] Section 1981 claims are subject to 

dismissal pursuant to Fed. R. Civ. P. 12(b)(6) and 56(c).” Id. at 63 (emphasis 

added). We have further mined the pleadings to unearth any argument of qualified 

immunity in relation to the § 1981 claim, and find none.1

 

 “Unlike the denial of qualified immunity . . . the denial of [a] motion for 

summary judgment is not a final decision under 28 U.S.C. § 1291 and is not normally 

reviewable by this Court.” Lee v. Nicholl, 197 F.3d 1291, 1297 (10th Cir. 1999). 

Because Ms. Ramos did not move for qualified immunity with respect to the § 1981 

claim, we lack jurisdiction to review the order denying summary judgment. 

 1

 Ms. Ramos’s motion was captioned “Defendant Theresa Ramos’ Motion for 

Summary Judgment Based on Qualified Immunity.” Aplt. App. at 62. However, the 

substance of a pleading—not its caption—controls. See Cosgrove v. Bartolotta, 

150 F.3d 729, 732 (7th Cir. 1998) (explaining that “captions do not control”). 

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The § 1983 Claim 

Ms. Ramos did argue for qualified immunity as to the § 1983 claim. And 

because she appeals a legal conclusion—whether the law was clearly established—

we have jurisdiction to review the order. “[A] district court’s decision denying a 

government official qualified immunity is an immediately appealable final collateral 

order . . . [provided the appeal] is limited to purely legal issues raised by the denial of 

qualified immunity.” Morris v. Noe, 672 F.3d 1185, 1188-89 (10th Cir. 2012) 

(internal quotation marks and brackets omitted). 

 “[B]ecause qualified immunity is designed to protect public officials from 

spending inordinate time and money defending erroneous suits at trial, we review 

summary judgment decisions involving a qualified immunity defense somewhat 

differently than other summary judgment rulings.” Rojas v. Anderson, 727 F.3d 

1000, 1003 (10th Cir.) (internal quotation marks omitted), cert. denied, 134 S. Ct. 

800 (2013). Where a defendant asserts qualified immunity, “the burden shifts to the 

plaintiff to satisfy a strict two-part test: first, the plaintiff must show that the 

defendant’s actions violated a constitutional or statutory right; second, the plaintiff 

must show that this right was clearly established at the time of the conduct at issue.” 

Id. 

Ms. Taite attempted to meet the first part of the test by arguing that Ms. Ramos 

“violated [her] constitutional right to equal protection of the laws.” Aplt. App. 

at 121. Despite this argument and the amended complaint, which pled a Fourteenth 

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Amendment violation as the basis for the § 1983 claim, the district court rejected the 

notion the claim was based on a constitutional violation: 

It also appears that Defendant Ramos seeks dismissal of two 

claims that Plaintiff did not raise in her Amended Complaint: (1) a 

violation of Plaintiff’s Fourteenth Amendment right to procedural due 

process protections in relation to a property interest of continued 

employment and (2) a violation of Plaintiff’s right to equal protection 

under the Fourteenth Amendment. . . . Nothing in the Amended 

Complaint alleges that Plaintiff had a legitimate interest in continued 

employment at [the University of New Mexico] or that Plaintiff was 

terminated without specific due process protections. . . . The same is 

true with respect to an equal protection claim under the Fourteenth 

Amendment. Nothing in Count 3 of Plaintiff’s Amended Complaint 

specifically alleges an equal protection cause of action. Yet, in briefing, 

Defendant Ramos primarily discusses a possible Equal Protection 

Clause claim instead of analyzing the pertinent elements of a race 

discrimination claim under §§ 1983 and 1981, a claim that Plaintiff did 

clearly allege. 

Id. at 176-77. 

 The district court found instead that the § 1983 claim was based on the “right 

to be free from racial discrimination,” and citing Title VII, it concluded the law “was 

clearly established at the time of [Ms. Taite’s] employment with [the University].” 

Id. at 185. In so ruling, the court effectively eliminated Ms. Taite’s § 1983 claim. 

Although the same conduct can support a violation of § 1983 and Title VII, “a 

plaintiff may base a section 1983 claim on actions proscribed by Title VII where 

those actions also violate the United States Constitution.” Polson v. Davis, 895 F.2d 

705, 710 (10th Cir. 1990) (internal quotation marks omitted). See also Notari v. 

Denver Water Dep’t, 971 F.2d 585, 587 (10th Cir. 1992) (“[T]he basis for a § 1983 

claim is ‘independent’ from Title VII when it rests on substantive rights provisions 

outside Title VII—that is, when it rests on a constitutional right or a federal statutory 

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right other than those created by Title VII”). Here, the court’s determination that 

Ms. Taite’s § 1983 claim was not based on either a constitutional right or a statutory 

right other than Title VII, means there is no claim. 

 Under different circumstances we might remand the case to the district court to 

enter judgment for Ms. Ramos on the § 1983 claim. But neither the court nor the 

parties have been afforded an opportunity to examine the issue and explain their 

respective positions concerning the court’s characterization of the § 1983 claim under 

the principles announced in Notari and Polson. We therefore reverse and remand the 

order as to the § 1983 claim for further proceedings consistent with this order and 

judgment. We dismiss the appeal denying summary judgment on the § 1981 claim 

for lack of jurisdiction. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

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