Teresa Barry v. James O'Grady
Opinion of the Court
*442Teresa Barry, a judicial administrative assistant, sued three judges and two employees of the Franklin County Municipal Court under
On appeal, O'Grady contends that the district court erred in denying him qualified immunity on the two remaining claims. Because O'Grady's argument relies on disagreements with the district court's weighing of facts and factual inferences-and not questions of law-we have no jurisdiction and must dismiss the appeal. See Johnson v. Jones ,
BACKGROUND
Barry alleges that O'Grady created a hostile work environment rife with vulgar comments about women, either coming from O'Grady directly, encouraged by him, or tolerated by him. Barry highlights, among other allegations, that O'Grady was involved in a conversation about a female lawyer who appeared regularly in front of the court. O'Grady and two bailiffs explicitly discussed the lawyer's sex life, with one of the bailiffs saying that the lawyer "licked [a male lawyer] like a lap dog" and O'Grady responding that the female lawyer must be "good at what she does." Angry at what she overheard, Barry posted about the conversation on Facebook and told the female lawyer about it.
When O'Grady learned that Barry had reported the conversation to the female lawyer, O'Grady began to retaliate. In response, Barry brought O'Grady's behavior to the attention of the court administration. She was moved out of O'Grady's chambers, and eventually accepted a transfer to a less-desirable position because she believed that was her only real option. Even after the move, her work life continued to devolve, and she suffered from mental-health issues as a result.
Barry sued under § 1983 and, after discovery, O'Grady argued that qualified immunity protected him from liability. The district court disagreed, finding disputed issues of material fact in the two claims against O'Grady and concluding that a reasonable jury could find in Barry's favor on both claims. The district court thus denied O'Grady summary judgment, and O'Grady now appeals.
DISCUSSION
In all but a few circumstances, we have jurisdiction to hear appeals only from final decisions. See
*443Because the denial of summary judgment is not a final decision, it ordinarily is not appealable. In the context of a denial of qualified immunity, however, a denial of summary judgment may be treated as final under § 1291. Mitchell v. Forsyth ,
We have, however, recognized two narrow exceptions to the rule prohibiting fact-based interlocutory appeals. First, "[i]n exceptional circumstances, an appellate court may overrule a district court's determination that a factual dispute exists where evidence in the record establishes that the determination is 'blatantly and demonstrably false.' " Austin v. Redford Twp. Police Dep't ,
The upshot is that, in most appeals of denials of qualified immunity, we must defer to the district court's determinations of fact. Beyond determinations of fact, "[w]e have also held that a defendant may not challenge the inferences that the district court draws from those facts, as that too is a prohibited fact-based appeal." DiLuzio v. Vill. of Yorkville ,
That well-settled standard is dispositive in this case. Given that the district court's decision turned on its determination that disputed issues of material fact remain, we may exercise jurisdiction only if O'Grady can satisfy one of the two narrow exceptions to Johnson . As an initial matter, O'Grady does not attempt to argue that any of the district court's factual conclusions were "blatantly and demonstrably false." Austin ,
Even though this court is prohibited from resolving O'Grady's factual protests, we still would have jurisdiction over the appeal if O'Grady presented any "neat abstract issues of law," Phillips v. Roane County ,
Throughout his argument on the First Amendment claim, O'Grady outlines the correct legal standard but then simply draws his own favorable inferences or ignores the district court's inferences in favor of Barry. For example, addressing Barry's arguably retaliatory transfer, O'Grady fails to accept Barry's claim that she felt forced to take the transfer. Instead, O'Grady continues to argue that the transfer really was Barry's choice, that she actually did not have to take the transfer, and that O'Grady believed that Barry wanted the transfer. These propositions, however, are not legal arguments; they are factual conclusions that are unsupported at least and directly refuted at most.
O'Grady's argument regarding Barry's gender-discrimination claim fares no better. His argument begins with the bold contention that there is "no evidence whatsoever" of O'Grady's "hostility to women in general."
Here, too, O'Grady fails to accept Barry's facts and show why, as a matter of law, she cannot prevail on her claim. Instead, he challenges the weight, the plausibility, and the credibility of the evidence supporting Barry's gender-discrimination claim. The closest that O'Grady comes to applying the legal standard for gender discrimination is a string cite to cases in which he argues that the "sexually offensive conduct [was] more serious or persistent" than what Barry alleges and yet we upheld summary judgments in favor of the defendants. He does not explain, however, why those cases are similar to this case. Nor does he apply that conclusion to the qualified-immunity analysis. And like the rest of his briefing, in listing those cases O'Grady is not "willing to concede the most favorable view of the facts to the plaintiff for purposes of the appeal." Phelps ,
CONCLUSION
We have jurisdiction to hear the appeal of a denial of qualified immunity only when "the appeal is premised not on a factual dispute, but rather on 'neat abstract issues of law.' " Phillips ,
DISSENT
The district court's 20-page background provides a thorough recitation of the facts that pulls from over 3,000 pages of record. O'Grady's disagreements with the trial court's statement of the facts are central to this appeal. For those reasons, instead of creating a new statement of the facts, we rely on the district court's opinion, available at Barry v. O'Grady, et al. , No. 14-cv-2693,
It appears that O'Grady's failure to present an appealable issue of law arises, in part, from his misunderstanding of what makes a fact "material." As is long-established, "[a] 'material' fact is one 'that might affect the outcome of the suit.' " J.B.D.L. Corp. v. Wyeth-Ayerst Labs., Inc. ,
As part of her gender-discrimination claim, Barry alleged that she was constructively discharged. On appeal O'Grady argues that there is no constructive discharge because Barry did not actually quit her job until after defendants had filed their motion for summary judgment. He contends that "[i]t is beyond dispute the evidence she was still employed refutes any allegation Plaintiff had quit her job." Yet again, O'Grady argues the underlying facts and fails to explain why he prevails as a matter of law when the facts are viewed in a light most favorable to Barry-indeed, he fails to cite a single case that supports his position. In short, O'Grady's constructive-discharge argument also relies on factual disagreements with the district court and so we do not have jurisdiction to consider it. See Johnson ,
Dissenting Opinion
Teresa Barry has given us plenty of good reasons to deny qualified immunity to Judge James O'Grady on the ground that a material dispute of fact clouds what happened in this case and precludes summary judgment. Rather than accept those reasons and rather than provide useful law-of-the-case precedent for the upcoming trial and any appeal from that trial, the court dismisses the appeal on the ground that we lack subject matter jurisdiction to review the fact inferences drawn by the district court under Johnson v. Jones ,
*446Scott v. Harris ,
In Johnson v. Jones , Houston Jones sued five police officers for allegedly beating him.
Johnson establishes an important principle-but a limited principle. An officer may not appeal the denial of a qualified immunity ruling solely on the ground that the plaintiff's record-supported facts are wrong. In the rare case in which that is all the officer does-saying in effect only that the plaintiff is lying-an appellate court should dismiss the appeal for lack of jurisdiction. Otherwise, we have jurisdiction to decide-on de novo review-whether, after reading the factual record in the light most favorable to the plaintiff, the officer should win as a matter of law on the first or second prong of qualified immunity. That's all there is to it. Each of our too-many-to-count additional glosses on Johnson is needlessly complicated, inconsistent with later Supreme Court cases, contradicts our duty to apply fresh review to a district court's summary judgment decision, and ultimately is hurtful to the party it is designed to help: the plaintiff.
The key gloss used today (and not for the first time) is to transform Johnson into a rule about what the district court did, as opposed to what the defendant officer did. No longer is the subject-matter-jurisdiction question about what the officer does , namely raise a legal question about whether the plaintiff's record evidence creates a material issue of fact for trial. It is a subject-matter-jurisdiction question about what the district court did , namely drew "inferences" that have become a forbidden source of appeal because in our circuit "that too is a prohibited fact-based appeal." DiLuzio v. Vill. of Yorkville ,
Consider the defendant official's appellate stance today to see how far we have come in transforming Johnson . The defendant recounts Barry's story about the raunchy November conversation. Appellant's Br. 4-6. He notes that Barry thought he grew "hostile" to her after the female attorney came to speak to him and describes the evidence to which she points to support that allegation. Id. at 6-8. And he recounts the harsh language and inappropriate comments that Barry alleges he made. Id. at 11, 24-26. I have little doubt that the defendant will challenge the veracity of those allegations at trial, as he is entitled to do. But at this stage, he has accepted the statements and done what *447every appellant has been allowed to do since the creation of Civil Rule 56 : raise a legal challenge about whether, even accepting those facts and the inferences from those facts, he should win as a matter of law. Even on Barry's version of the facts, the defendant thinks his conduct was not severe enough to create a hostile work environment that violated her clearly established rights. Id . at 44-55. That is a legal question-two legal questions really. And the defendant is permitted to take an interlocutory appeal to argue that the evidence, even when viewed in Barry's favor, could not prove that he retaliated against her in violation of her clearly established rights under the First Amendment. Id. at 29, 34-40. Yet the court refuses to decide whether the district court drew the proper inferences when it denied Barry qualified immunity. Supra at 443-45 & n.2. Instead, it dismisses the appeal for lack of jurisdiction. Id. at 445. It escapes me how this approach can be consistent with the responsibilities assigned to us in reviewing a summary judgment decision. Namely: Are the facts, when read in the light most favorable to the plaintiff, "sufficient as a matter of law to state a triable question under each legal element essential to liability[?]" Walton v. Powell ,
In cases since Johnson , that's how the Supreme Court has looked at it. Scott v. Harris reviewed the appeal of an officer who caused a fleeing suspect to crash during a high-speed car chase. Because a camera captured the chase, there were no facts to contest, just inferences from those facts. The district court inferred from the video, when viewed in the light most favorable to the plaintiff, that a triable issue remained over whether Harris was driving safely. The Court reviewed that inference, found that the videotape evidence could not support it, and reversed. Scott ,
The Court did the same thing in Plumhoff v. Rickard . After the district court denied summary judgment because a triable issue of fact remained over whether the officers violated the Fourth Amendment, our court affirmed, but only after a many-paged attempt to figure out whether to dismiss for lack of jurisdiction. See Estate of Allen v. City of W. Memphis ,
Instead of following the examples of Scott and Plumhoff , some panels of our court have buried the two cases in exceptions. One exception: Johnson does not apply to cases where all genuinely disputed facts are caught on video. See, e.g. , Rudlaff v. Gillispie ,
If any doubt remains about the oddity of our approach to Johnson , the Supreme Court's approach to interlocutory appeals at the motion-to-dismiss stage should dispel it. At that stage, we accept the complaint's allegations as true and review whether the district court's pro-plaintiff inferences are "plausible." Ashcroft v. Iqbal ,
We stand alone in pushing Johnson so aggressively. Most circuits, true enough, have some decisions wrestling with the reach of Johnson . And most of them have some opinions going both ways. See Romo v. Largen ,
But none seem to invoke Johnson as often as we do. A database search reveals that our published and unpublished opinions have cited Johnson seventy-one times since the Court decided Plumhoff in 2014, when one might have thought the Supreme Court rejected the full-flowering form of Johnson . The Tenth Circuit comes in a distant second with twenty-nine citations. The First, Second, Third, Fourth, Fifth, Seventh, Ninth, Eleventh, and D.C. Circuits have cited the case between zero and seventeen times. The long and the short of it is that we are spending a lot of time doing something that no one else seems to be doing.
Making matters worse, our broad reading invites a host of inefficiencies and complications. How exactly does an appellate court decide what the district court inferred? Should we defer only to the inferences that the district court explicitly drew? See Lewis v. Tripp ,
Oddly enough, all of this can be evaded by the clever attorney who makes sure to raise a prong-two qualified immunity argument-which to date remains a legal question subject to interlocutory review. Then he or she can use pendent jurisdiction over the rest of the appeal, as the two are invariably "inextricably intertwined." Swint v. Chambers Cty. Comm'n ,
Last but not least, our approach to Johnson hurts the parties it means to help. Just ask Teresa Barry. Had we reached the merits of her claim, we might have affirmed the district court's denial of qualified immunity on the ground that a material fact dispute remained. That might have given Barry and the trial judge clear direction as to what was at stake and what law should control the jury trial at prongs one and two of the qualified immunity inquiry. And in a future appeal, the law of the case would establish the contours of what the jury could permissibly decide. Instead, Barry returns to the district court empty-handed.
In the final analysis, our gloss on Johnson fails to respect Supreme Court precedent, ignores the de novo standard of review applicable in reviewing summary judgment decisions, can be sidestepped at ease, and hurts the people it is designed to help. The court seeing things differently, I respectfully dissent.
Reference
- Full Case Name
- Teresa BARRY, Plaintiff-Appellee, v. James P. O'GRADY, Defendant-Appellant.
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- 46 cases
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- Published