Motley, Constance Baker; Gantt, Harvey; Meredith, James; and Others, 1964, undated - 1 of 5 (back)

    No. 95-

In The

Supreme Court of tfje Winxttb States;
October Term, 1995

Winfred Waylon J ackson,
Petitioner,

v.

City of Atlanta, Texas, et al.,

Respondents.

On Petition for Writ of Certiorari 
to the United States Court of Appeals 

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
(Counsel of Record)
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

C. Victor Lander 
Lander and Associates, P.C. 

1447 Plowman Avenue 
Dallas, Texas 75203 
(214) 942-1073

Attorneys for Petitioners

PRESS OF BYRON S. ADAMS ♦  WASHINGTON, D.C. ♦  1-800-347-8208



I

Q u e s t io n  P r e s e n t e d

Is Title VII of the Civil Rights Act of 1964, as 
amended by the Equal Employment Opportunity Act of 
1972, the exclusive remedy for claims of employment 
discrimination on the basis of race for state or local 
government employees, so that such employees may no 
longer bring an action under 42 U.S.C. § 1983 for claims of 
racial discrimination in employment, a question concerning 
which there is a conflict among the courts of appeals?



u

P a r t ie s

The parties in the proceedings below were:

Winfred Waylon Jackson,

Plaintiff in the District Court, Plaintiff- 
Appellee in the Court of Appeals.

City of Atlanta, Texas,

Defendant in the District Court.

Jim Long, Peyton Childs, Charles Riley, John Pierce 
Ellis, and Randall Lee,

Defendants in the District Court, Defendants- 
Appellants in the Court of Appeals.



m

T a b le  o f  C o n ten ts

Question Presented ........................................................ i

P arties..............................................................................  ii

Table of Authorities.....................................................  iv

Opinions B elow ..............................................................  1

Jurisdiction ...................................    2

Constitutional and Statutory
Provisions Involved..........................................................  2

Statement of the Case ...................................................  4

A. The Proceedings Below....................    4

B. Statement of the F a c ts .................................  6

Reasons for Granting the W rit ......................................  7

Certiorari Should Be Granted To Resolve A 
Conflict Among The Circuits As To The 
Important Question of Whether Title VII Is 
The Exclusive Remedy For Claims Of 
Discrimination In Employment Brought By
State and Local Government Employees. . . . . .  7

A. The Conflict Among the Circuits . . .  7

B. The Importance of the Issue.............. 9

C. The Decision Below is Erroneous . 10

Conclusion..................................................................... 13

Appendix



IV

T a b l e  o f  A u t h o r it ie s

Cases: Pages:

Allen v. Denver Public School Board, 928 F.2d 978
(10th Cir. 1991)...............       9

Annis v. County of Westchester, 36 F.3d 251
(2nd Cir. 1994) ........     8

Bradley v. Pittsburgh Board of Educ., 913 F.2d 1064
(3rd Cir. 1990)...............     8

Brown v. General Services Administration, 425 U.S. 820
(1976) ..................................................................   10

Busby v. City of Orlando, 931 F.2d 764
(11th Cir. 1991)...............................     10

Clanton v. Orleans Parish School Board, 649 F.2d 1084
(5th Cir. 1084)...........     10

Day v. Wayne County Board of Auditors, 749 F.2d 1199
(6th Cir. 1984).......................................................... 8

Grant v. Lone Star Co., 21 F.3d 649
(5th Cir. 1994)......................     10

Harvey v. Blake, 913 F.2d 226 (5th Cir. 1990)......... .. 5

Irby v. Sullivan, 737 F.2d 1418 (5th Cir. 1984)............. .. 7

Jett v. Dallas Ind. School District, 491 U.S. 701
(1989)............................................................... 9, 12

Johnson v. Jones,__ U.S.___ , 115 S.Ct. 2151, 132
L.Ed.2d 238 (1995) ............................................   5



Pages:

Johnson v. Railway Express Agency, 421 U.S. 454
(1974)............................................................  11, 12

Johnston v. Harris County Flood Control Dist., 869 F.2d 
1565 (5th Cir. 1989), cert, denied, 493 U.S. 1019 
(1990)................................................................. 7-9

Keller v. Prince George’s County, 827 F.2d 952 (4th Cir.
1987)............................................................  8, 9, 11

Maine v. Thiboutot, 448 U.S. 1 (1980) ......................... 12

Middlesex County Sewage Authority v. Sea Clammers,
453 U.S. 1 (1981).................................................  12

Miller v. Maxwell’s Int’l Inc., 991 F.2d 583
(9th Cir. 1993).....................................................  10

Roberts v. College of the Desert, 870 F.2d 1411
(9th Cir. 1988).......................................................... 8

Starrett v. Wadley, 876 F.2d 808 (10th Cir. 1989) ......... 9

Suter v. Artist M., 503 U.S. 347 (1992)......................... 12

Trigg v. Fort Wayne Community Schools, 766 F.2d 299
(7th Cir. 1985).......................................................... 8

Willis v. Morris, 70 F.3d 116, 1995 WL 613642 (6th Cir.
No. 95-5107, Oct. 18, 1995) cert, denied, 64 U.S.L. 
W. 3639 (March 25, 1996)...................................... 8

Wright v. Roanoke Redevelopment & Housing Authority, 
479 U.S. 418 (1987)............................................  12



Constitutional Provisions and Statutes:: Pages:

28 U.S.C. § 1254(1) .......................................................... 2

42 U.S.C. 1981a(b)(3)......... .......... ...................................9

42 U.S.C. § 1981 .......................................... .. passim

42 U.S.C. § 1983 ........................     passim

42 U.S.C. §§ 2000e .............................................................2

Civil Rights Act of 1991 ............................................ 3-6, 9

Equal Employment Opportunity Act of 1972 . . .  2, 4, 5, 9,
11, 12

Fourteenth Amendment to the Constitution of the United 
States ..................     2

P.L. 92-261 ................. .................................................. 2, 3

P.L. 102-166 .................. ................................................ .. . 3

Title VII of the Civil Rights Act of 1964 ................passim

Other Authorities: Pages:

H.R. No. 92-238 (92nd Cong., 1st Sess. 1971) . . . . . . .  11

vi



No. 95-

In The

Supreme Court ot tije Hmteb States
October Term, 1995

Winfred Waylon Jackson,
Petitioner,

v.

City of Atlanta, Texas, et al,
Respondents.

On Petition for Writ of Certiorari to the United 
States Court of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Winfred Waylon Jackson, respectfully 
prays that a writ of certiorari issue to review the opinion of 
the Court of Appeals for the Fifth Circuit entered in this 
proceeding on January 24, 1993.

O pin io n s  Be l o w

The opinion of the United States Court of Appeals 
for the Fifth Circuit is reported at 73 F.3d 60 (5th Cir. 
1996), and is set out at pages la-8a of the Appendix hereto 
("App."). The order of the Court of Appeals denying a 
timely petition for rehearing is unreported and is set out at 
App. at 12a-13a. The Order of the District Court for the 
United States District Court for the Eastern District of 
Texas is unreported and is set out App. at 9a-lla.



2

Ju r is d ic t io n

The decision of the Fifth Circuit was entered on 
January 24, 1996. A timely petition for rehearing was filed 
and was denied on March 6, 1996. Jurisdiction of this Court 
is invoked under 28 U.S.C. § 1254(1).

C o n s t it u t io n a l  a n d  St a t u t o r y  
P r o v is io n s  In v o l v e d

This case involves:

Section 1 of the Fourteenth Amendment to the 
Constitution of the United States, which provides, in 
pertinent part:

No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person 
of life, liberty, or property, without due process of 
law; nor deny to any person within its jurisdiction the 
equal protection of the laws.

Title VII of the Civil Rights Act of 1964, as amended 
by the Equal Employment Opportunity Act of 1972, 42 
U.S.C. §§ 2000e, which provides, in pertinent part:

(a) The term "person" includes one or more 
individuals, governments, governmental agencies, 
political subdivisions, labor unions, partnerships, 
associations, corporations, legal representatives, 
mutual companies, joint-stock companies, trusts, 
unincorporated organizations, trustees, trustees in 
bankruptcy, or receivers. (As amended by P.L. 92- 
261, eff. March 24, 1972.)

(b) The term "employer" means a person engaged in 
an industry affecting commerce who has fifteen or 
more employees for each working day in each of 
twenty or more calendar weeks in the current or 
proceeding calendar year, and any agent of such



3

person, but such term does not include (1) the 
United States, and Indian tribe, or any department or 
agency of the District of Columbia subject by statute 
to procedures of the competitive service . . . .  (As 
amended by P.L. 92-261, eff. March 24, 1972.)

* * *

(i) The term "State" includes a State of the United 
States, the District of Columbia, Puerto Rico, the 
Virgin Islands, American Samoa, Guam, Wake 
Island, the Canal Zone, and Outer Continental Shelf 
lands defined in the Outer Continental Shelf Lands 
Act.

42 U.S.C. § 1981, as amended by the Civil Rights Act 
of 1991, which provides, in pertinent part:

(a) All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts . . .  as is 
enjoyed by white citizens . . . .

(b) For purposes of this section, the term "make and 
enforce contracts" includes the making, performance, 
modification, and termination of contracts, and the 
enjoyment of all benefits, privileges, terms, and 
conditions of the contractual relations.

(c) The rights protected by this section are protected 
against impairment by nongovernmental  
discrimination and impairment under color of State 
law. (As amended, P.L. 102-166, eff. November 21, 
1991.)

42 U.S.C. § 1983, which provides:
Every person who, under color of any statute, 
ordinance, regulation, custom, or usage of any State 
or Territory or the District of Columbia, subjects, or 
causes to be subjected, any citizen of the United



4

States or other person within the jurisdiction thereof 
to the deprivation of any rights, privileges, or 
immunities secured by the Constitution and laws, 
shall be liable to the party injured in an action at 
law, suit in equity, or other proper proceeding for 
redress.

St a t e m e n t  o f  t h e  Ca se

A. The Proceedings Below.

This action was filed on December 17, 1993, in the 
United States District Court for the Eastern District of 
Texas, Marshall Division. Plaintiff, an African American 
citizen of the United States, alleged that he had been 
discriminated against in employment on because of his race 
and, therefore, stated claims and causes of action under 42 
U.S.C. § 2000e, et seq., Title VII of the Civil Rights Act of 
1964, as amended by the Equal Employment Opportunity 
Act of 1972; 42 U.S.C. § 1981, as amended by the Civil 
Rights Act of 1991; and 42 U.S.C. § 1983. Plaintiff also set 
out claims for defamation and for intentional infliction of 
emotional distress under state law. The defendants are the 
City of Atlanta, Texas, and city officials, including the City 
Manager, Mayor, and members of the City Council of the 
City of Atlanta, all of whom were sued in both their official 
and individual capacities.

After answers, an amended complaint, and amended 
answers were filed, both the City and the individual 
defendants moved to dismiss or alternatively for summary 
judgment on a number of grounds. These included claims 
of absolute and qualified immunity.

The district court granted the motions of all 
defendants to dismiss the claims under state law. The court, 
on the other hand, denied the motions to dismiss on the 
basis of qualified or absolute immunity and denied the 
motions for summary judgment. App. 9a-lla.



5

The individual defendants (but not the City of 
Atlanta), filed an appeal from the denials of their motions 
to dismiss and for summaiy judgment. The Court of 
Appeals held that it was without jurisdiction over the denial 
of summary judgment with regard to plaintiffs claims under 
Title VII, and remanded that issue to the district court for 
trial.

With regard to the issue of qualified immunity, the 
Court of Appeals held that it had jurisdiction over that issue
under the decision of this Court in Johnson v. Jones, __
U .S.__ , 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), since the
issue presented was solely a matter of law. App. 4a-5a. The 
issue of law involved was whether the district court had 
jurisdiction over plaintiffs claims under 42 U.S.C. § 1983, or 
whether his exclusive remedy was under Title VII of the 
Civil Rights Act of 1964.

The Fifth Circuit held that when Title VII was 
amended by the Equal Employment Opportunity Act of 
1972 to include state and local government agencies, it 
became the exclusive remedy for claims of discrimination in 
employment against such agencies. Therefore, the district 
court lacked jurisdiction over plaintiffs claims under section 
1983 and those claims were ordered dismissed. Although 
the complaint stated a claim under 42 U.S.C. § 1981 (as 
amended by the Civil Rights Act of 1991) and § 1983 
together, the Fifth Circuit did not mention section 1981 in 
its opinion.

The defendants-appellants filed a timely petition for 
rehearing on the ground, inter alia, that they, in their 
individual capacities, should have been dismissed as 
defendants to the Title VII action. See, Harvey v. Blake, 913 
F.2d 226 (5th Cir. 1990). The Court of Appeals denied the 
petition for rehearing on March 6, 1996. App. 12a-13a.



6

B. Statement o f the Facts

According to the allegations of the complaint filed in 
this action, which allegations are to be assumed true in the 
current posture of the case, petitioner was employed by 
respondent City of Atlanta, Texas, as the Fire Chief from 
April, 1989, until his termination on December 18, 1992.1 
He was terminated by respondent Jim Long, who was at that 
time the City Manager of the City of Atlanta. Mr. Long 
informed the petitioner that he was being discharged for 
alleged animosity, alleged low morale, and alleged 
disharmony within the Fire Department.

The petitioner challenged Mr. Long’s action on the 
ground that the real reason for the termination was 
petitioner’s race. The complaint alleged that Long had 
consistently undermined his authority as Fire Chief and had 
tried to force him out of his position because of his race. 
Petitioner was the only African-American supervisor in the 
fire department, was the only African-American department 
head, and was the highest ranking African-American 
employee of the city. Petitioner further charged that Mr. 
Long did not follow the discharge policies of the city and 
that similarly situated white individuals who were terminated 
before and after petitioner were not treated in the same 
manner as was petitioner.

After petitioner was terminated, he appealed the 
termination to the City of Atlanta City Council, and 
attempted to bring to the attention of the City Council the 
alleged illegal motives and actions of Mr. Long. The other 
respondents in this action, Charles Riley, John Pierce Ellis, 
Randall Lee, and Peyton Childs (all of whom are 
Caucasian), are members of the City Council and the Mayor 
of the City of Atlanta. They voted to uphold the

^ince petitioner was terminated after the effective date of the 
Civil Rights Act of 1991, he stated a claim under 42 U.S.C. § 1981(b).



7

termination of petitioner. Petitioner further alleged that the 
respondents defamed the character of the petitioner in a 
variety of ways in order to ruin his reputation and to further 
harm him.

R e a s o n s  f o r  G r a n t in g  t h e  W r it

Certiorari Should Be Granted To Resolve A 
Conflict Among The Circuits As TO The 

Important Question of Whether Title VII Is The 
Exclusive Remedy For Claims Of Discrimination 

In Employment Brought By State and Local 
Government Employees.

A. The Conflict Among the Circuits

The Court of Appeals for the Fifth Circuit held in 
the present case that:

The governing statute, Title VII in this 
case, provides Jackson’s exclusive remedy. 
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 to sidestep the detailed 
and specific provisions of Title VII.

App. 6a. Since petitioner’s allegations of racial 
discrimination establish a violation of Title VII, "§ 1983 is 
not available to Jackson for either alternative or additional 
relief." App. 7a. Therefore, "Jackson’s putative § 1983 
claims . . . should have been dismissed." Id.

In its opinion, the Fifth Circuit relied on an earlier 
decision, Irby v. Sullivan, 737 F.2d 1418 (5th Cir. 1984), and 
distinguished another earlier decision, Johnston v. Harris 
County Flood Control Dist., 869 F.2d 1565 (5th Cir. 1989), 
cert, denied, 493 U.S. 1019 (1990). App. 6a, n. 13. In



8

Johnston, the court below explained, the employer’s alleged 
conduct violated "both Title VII and a separate constitutional 
or statutory right." Id. (emphasis in the original). In the 
present case, on the other hand, the sole basis for the § 1983 
claim was racial discrimination; therefore, Johnston was 
inapplicable.

The Fifth Circuit has, therefore, placed itself in 
square conflict with at least six other circuits. Thus, in Annis 
v. County o f Westchester, 36 F.3d 251 (2nd Cir. 1994), the 
Second Circuit held that a public employee can bring an 
action for discrimination based on sex pursuant to § 1983, 
concluding "that Title VII is not intended to be an exclusive 
remedy for sex discrimination in the workplace." 36 F.3d at 
253. Thus, the Second Circuit reversed the district court’s 
dismissal of the § 1983 action, which dismissal was based on 
the same reason relied on by the Fifth Circuit here, i.e., that 
the employee must be required to follow all of the 
procedural steps required by Title VII.

In the course of its decision, the Second Circuit cited 
decisions in the Third,2 Fourth,3 Sixth,4 Seventh,5 Ninth,6

2Bradley v. Pittsburgh Board o f Educ., 913 F.2d 1064 (3rd Cir. 
1990).

3Keller v. Prince George’s County, 827 F.2d 952 (4th Cir. 1987).

4Day v. Wayne County Board of Auditors, 749 F.2d 1199 (6th Cir.
1984) . However, a recent unpublished decision of the Sixth Circuit 
held that Title VII is the exclusive remedy for employment 
discrimination claims, and that such an action cannot be brought 
under § 1983. Willis v. Morris, 70 F.3d 116,1995 WL 613642 (6th Cir. 
No. 95-5107, Oct. 18, 1995) cert, denied, 64 U.S.L. W. 3639 (March 
25, 1996).

5Trigg v. Fort Wayne Community Schools, 766 F.2d 299 (7th Cir.
1985) .

6Roberts v. College o f the Desert, 870 F.2d 1411 (9th Cir. 1988).



9

and Tenth Circuits7 as holding that Title VII is not the 
exclusive remedy for discrimination claims against state or 
municipal employers, where those claims derive from 
violations of Constitutional rights.8 It particularly noted the 
decision of the Fourth Circuit in Keller v. Prince George’s 
County, 827 F.2d 952, 958-62, 965-66 (4th Cir. 1987), for its 
exhaustive discussion of the legislative history of the Equal 
Employment Opportunity Act of 1972.

B. The Importance o f the Issue.

Whether Title VII repealed by implication the 
provisions of 42 U.S.C. § 1983, and perhaps § 1981 as well, 
insofar as they applied to employment discrimination claims, 
is clearly a question of great importance since it impacts on 
the availability of the full range of remedies for 
discrimination that violates the rights of state and local 
government employees.9 As the Fifth Circuit itself noted, 
§ 1983 authorizes compensatory and punitive damages to an 
extent not provided for by Title VII, even as amended by the 
Civil Rights Act of 1991, since that statute sets limits on the 
total amount of such damages.10 App. 6a, n. 17.

’’Starrett v. Wadley, 876 F.2d 808 (10th Cir. 1989). But see Allen 
v. Denver Public School Board, 928 F.2d 978, 981-82 (10th Cir. 1991).

8The Second Circuit also cited the Fifth Circuit as consistent with 
its position because of the decision in Johnston v. Harris County Flood 
Control District, discussed above.

’Although the Fifth Circuit does not discuss petitioner’s claims 
under 42 U.S.C. § 1981, the reasoning behind its decision would seem 
to require the conclusion that Title VII also eliminated any cause of 
action under that provision as well, at least for state and local 
government employees. Cf. Jett v. Dallas Ind. School District, 491 U.S. 
701 (1989).

1042 U.S.C. 1981a(b)(3) limits the recovery of compensatory and 
punitive damages combined to a maximum of $300,000 for an 
employer with 500 or more employees, with lesser maximums for



10

Further, section 1983 permits suits against persons in 
their individual capacities who are alleged to be responsible 
for discriminatory employment actions. The Fifth Circuit 
has held that Title VII, on the other hand, by its language 
and intent provides a cause of action only against the entity 
that employs the claimant.11 Thus, the result of the 
decision below will be to limit severely the remedies 
available to victims of employment discrimination through 
the unfavored device of a repeal by implication.

A further effect of the decision will be to wipe out 
throughout the Fifth Circuit the discrimination claims of 
public employees who have relied on §§ 1981 and 1983 to 
present such claims in instances where they are unable to 
utilize Title VII.

C. The Decision Below is Erroneous.

As this Court has held, in a case that also involved 
the effect of the Equal Employment Act of 1972, sub silentio 
repeals of existing statutes are disfavored. Thus, Morton v. 
Mancari, 417 U.S. 535 (1974) held that the provisions of the 
1972 Act that made Title VII applicable to federal 
government employees did not repeal by implication long­
standing preferences to Native Americans in the Bureau of 
Indian Affairs.12 The protections provided by 42 U.S.C. §

smaller employers.

"See Clanton v. Orleans Parish School Board, 649 F.2d 1084 (5th 
Cir, 1084); Grant v. Lone Star Co., 21 F.3d 649 (5th Cir. 1994). 
Accord, Miller v. Maxwell’s Int’l Inc., 991 F.2d 583 (9th Cir. 1993); 
Busby v. City o f Orlando, 931 F.2d 764 (11th Cir. 1991).

nBrown v. General Services Administration, 425 U.S. 820 (1976), 
which held that Title VII was the exclusive remedy for federal 
government employees, is not to the contrary. There, this Court 
relied on Congress’ intent to create a new judicial remedy where 
there had been none before because of the sovereign immunity of the 
United States. 425 U.S. at 828-29, 833-35. In contrast, 42 U.S.C. §



11

1983 are as long-standing, and there is a complete absence 
of any language in the amendments of Title VII that 
suggests an intent to eliminate its applicability to acts of 
employment discrimination.

Indeed, when the legislative history of the 1972 Act 
is examined, it is clear that the intent of Congress was 
precisely the contrary; both sections 1983 and 1981 were to 
remain available as alternative or complementary remedies 
for illegal discrimination. See, Johnson v. Railway Express 
Agency, 421 U.S. 454, 459 (1974); Keller v. Prince George’s 
County, 827 F.2d at 958-62, 965-66. This was made explicit 
in the House Report on the Equal Employment Opportunity 
Act:

In establishing the applicability of Title VII to 
State and local employees, the Committee 
wishes to emphasize that the individual’s right 
to file a civil action in his own behalf, 
pursuant to the Civil Rights Act of 1870 and 
1871, 42 U.S.C. §§ 1981 and 1983, is in no 
way affected. . . . Title VII was envisioned as 
an independent statutory authority meant to 
provide an aggrieved individual with an 
additional remedy to redress employment 
discrimination. . . . The bill, therefore, by 
extending jurisdiction to State and local 
government employees does not affect 
existing rights that such individuals have 
already been granted by previous legislation.

H.R. No. 92-238, pp. 18-19 (92nd Cong., 1st Sess. 1971). 
This language makes clear that it was Congress’ intent to 
leave section 1983 intact and available for the redress of 
illegal employment discrimination.

1983 had long been available to state and local government 
employees to redress discrimination in employment.



12

Finally, the decision of the Fifth Circuit cannot be 
reconciled with this Court’s decision in Jett v. Dallas Ind. 
School District, 491 U.S. 701 (1989):

We hold that the express "action at law" 
provided by § 1983 for the "deprivation of any 
rights, privileges, or immunities secured by 
the Constitution and laws," provides the 
exclusive federal damages remedy for the 
violation of the rights guaranteed by § 1981 
when the claim is pressed against a state 
actor.

491 U.S. at 735. Here, petitioner’s cause of action under § 
1983 was specifically that the defendants, individually as well 
as in their official capacities, "have violated Plaintiffs right 
to contract on the basis of Plaintiffs race . . .  in violation of 
42 U.S.C. Section 1981 and Section 1983 . . . [and] 
Defendants were acting under color of authority of state 
law," and thus comes squarely within the holding of Jett. 
(Plaintiffs First Amended Original Petition, p. 13.) Jett in 
no way suggests that either § 1981 or § 1983 were 
superseded or repealed by implication when Title VII was 
enacted.13

In sum, the decision of the Fifth Circuit that Title 
VII is the exclusive remedy for employment discrimination 
claims is inconsistent with the legislative history of the Equal 
Employment Opportunity Act of 1972, with this Court’s 
decisions in Johnson v. Railway Express Agency, supra, and 
Jett v. Dallas Ind. School Dist., supra, and with the decisions

13In light of the legislative history of §§ 1981 and 1983 as 
discussed in Jett, this case involves none of the questions co n cerning  
the use of § 1983 to enforce substantive federal statutory rights that 
were raised in cases such as Maine v. Thiboutot, 448 U.S. 1 (1980); 
Middlesex County Sewage Authority v. Sea Clammers, 453 U.S. 1 
(1981); Wright v. Roanoke Redevelopment & Housing Authority, 479 
U.S. 418 (1987); and Suter v. Artist M , 503 U.S. 347 (1992).



13

of at least six other courts of appeals.

C o n c l u sio n

For the foregoing reasons, the petition for a writ of 
certiorari should be granted and the decision of the court 
below reversed.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
(Counsel o f Record)
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

C. Victor Lander 
Lander and Associates, P.C. 

1447 Plowman Avenue 
Dallas, TX 75203 
(214) 942-1073

Attorneys for Petitioner



Ap p e n d ix



WINFRED 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.

No. 95-40266 

Summary Calendar.

United States Court of Appeals,
Fifth Circuit.

Jan. 24, 1996.

Appeal from the United States District Court 
for the Eastern District of Texas.

Before WEINER, PARKER and DENNIS,
Circuit Judges.

PER CURIAM:

Plaintiff-Appellee Winfred Waylon Jackson sued the 
city of Atlanta, Texas, as well as its city manager and several 
of its city council-men individually, asserting, inter alia claims 
of discrimination under both title VII1 and 42 U.S.C. § 
1983. Based on immunity, the city manager and city council 
(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.

x42 U.S.C. § 2000e.



2a

I

FACTS AND PROCEEDINGS

In April 1989, Atlanta promoted Jackson, a black 
male, to the 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 
assigned to the Fire Chief. Jackson, the only black 
department head in Atlanta, thought 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 for racial 
discrimination under both Title 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 summary judgment on both claims. The 
Defendants timely filed this interlocutory appeal.

2Jackson 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).



3a

II

DISCUSSION
A . Ju r is d ic t io n

Before addressing 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 dismissed, 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 12(b)(6) or summary judgment 
based on qualified immunity.

Generally, we do not have interlocutory jurisdiction 
over the denial of either a motion to dismiss or a motion for 
summary judgment, as such pretrial orders are not "final 
decisions" for the purpose 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 
judgment in Jackson’s Title VII claims. We neither express 
nor imply an opinion on the merits of Jackson’s title VII 
claims; we simply dismiss the Title VII facet of this appeal 
for lack of appellate jurisdiction and remand these claims for 
further proceedings.

3Mosley 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.")

4See 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.").



4a

Jackson’s § 1983 claims are another matter 
altogether. In Mitchell v. Forsyth,5 the Supreme court 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 Johnson v. Jones,1 the Supreme Court made 
clear that our interlocutory jurisdiction under Mitchell begins 
and ends with the "purely legal" aspects of qualified 
immunity.8 In Johnson, the supreme court reiterated the 
dichotomy in the grounds for denying a motion for summaiy 
judgment based on qualified immunity; "(a) a determination 
about pre-existing ‘clearly established’ law, or (b) a

5472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

6Id 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, A ll  U.S. 
at 528, 105 S.Ct. at 2816-17.

'’Johnson v. Jones__U.S. 115 S.Ct. 2151, 132 L.Ed.2d 238
(1995).

sId, 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 ‘genuine’ issue of fact 
for trial,") (emphasis added).



5a

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 
have 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 qualified 
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 h e n  § 1983 a n d  T it l e  VII M e e t

Asserting a "purely legal" error, the Defendants 
contend that allegations of discriminatory treatment in 
connection with public 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. In Irby v. Smith,12 
we held that a violation of Title VII cannot also support a

9Id at 115 S.Ct. at 2158.

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

u 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 plaintiffs claim is not appealable.").

12737 F.2d 1418 (5th Cir. 1984).



6a

§ 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 to sidestep the detailed and specific 
provisions of Title VII.17 In denying Defendants’ motion 
to dismiss Jackson’s Title VII claims under Rule 12(b)(6),

13Id. 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.

14Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 28,101 
S.Ct. 1531, 1545-46, 67 L.Ed.2d 694 (1981).

15Id. (citations omitted).

16Irby, 737 F.2d at 1429.

17See 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.



7a

the district court necessarily determined that Jackson’s 
allegations of racial discrimination 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 such 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 court with the instruction to dismiss them.

C. O t h e r  A l l e g e d  E r r o r s

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 qualified 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 and under sued under § 1983.18 As we 
remand Jackson’s § 1983 claims with instructions for their 
dismissal, the Defendants no longer need the shelter of 
absolute immunity. Accordingly, we dismiss as moot all 
appellate issues arising from the defendants’ assertion of the 
affirmative defense of absolute immunity.

Ill

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’

18See e.g., Barker v. Norman, 651 F.2d 1107, 1120 (5th Cir. Unit A  
1981).



8a

defense of absolute immunity, albeit on grounds of 
mootness, the district court’s order denying Defendants’ 
motion to dismiss Jackson’s § 1983 claims, however, is 
REVERSED and REMANDED with instructions to dismiss 
such claims against the Defendants.

DISMISSED in part; REVERSED and 
REMANDED in part.



9a

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS 

MARSHALL DIVISION

WINFRED WAYLON JACKSON, §
§
§
§
§ 2:93cv214 
§

Plaintiff,

V.

CITY OF ATLANTA, TEXAS, §
JIM LONG, §
PEYTON CHILDS, §
CHARLES RILEY, §
JOHN PIERCE ELLIS, and §
RANDALL LEE, Each in his §

Individual and Official §
Capacity, §

$
Defendants.

is

§

ORDER
On this day come to be considered Defendant

Atlanta’s Motion to Strike Dr. Rafael Otero (docket number 
33-1), Defendant Atlanta’s Motion to Compel Disclosure 
(docket number 33-2), Defendant Atlanta’s Motion to 
Extend Time (docket number 33-3), Defendant Atlanta’s 
Motion to Dismiss or for Summary Judgment (docket 
numbers 43-1 and 43-2), Plaintiffs Motion to Extend Time 
(docket number 39); and All Defendants’ Motion to Dismiss 
or for Summary Judgment (docket number 42-1 and 42-2). 
After careful consideration, the Court is of the opinion that 
the following order should issue.

The Court dismisses the plaintiffs claims against all 
defendants for defamation pursuant to the Texas Tort 
Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 
101.157(2) (West 1986); Gillum v. City o f Kerrville, 3 F.3d



10a

117, 122 (5th Cir. 1993); City o f Dallas v. Moreau, 718 
S.W.2d 776, 779-80 (Tex. App. — Corpus Christi 1986, writ 
refd n.r.e.). The Court also dismisses the plaintiffs claim 
for intentional infliction of emotional distress against the 
City of Atlanta. Tex. Civ. Prac. & Rem. Code Ann. § 
101.157(2); Gillum, 3 F.3d at 122-23.

The Court denies the City’s motions to dismiss or for 
summary judgment with respect to all other claims. There 
are genuine issues of material fact with regard to these 
issues. The Court denies the officials’ motion to dismiss on 
the basis of qualified immunity. The Court finds that the 
plaintiff has met his summary judgment burden and the 
defendants have not overcome it with sufficient justification.

The Court denies the City’s motion to strike Dr. 
Otero. The Court, however, will not permit testimony of an 
expert who has not timely provided a comprehensive report 
under the Plan. It is, therefore,

ORDERED that Defendant Atlanta’s Motion to 
Strike Dr. Rafael Otero (docket number 3301) is DENIED. 
It is further

ORDERED that Defendant Atlanta’s Motion to 
Compel Disclosure (docket number 33-2) is DENIED. It is 
further

ORDERED that Defendant Atlanta’s Motion to 
Extend Time (docket number 33-3) is DENIED AS MOOT. 
It is further

ORDERED that Defendant Atlanta’s Motion to 
Dismiss (docket number 34-1) is GRANTED IN PART 
AND DENIED IN PART, as discussed above. It is further

ORDERED that Defendant Atlanta’s Motion for 
Summary Judgment (docket number 34-2) is DENIED. It 
is further

ORDERED that Plaintiffs Motion to Extend Time



11a

(docket number 39) is DENIED AS MOOT, It is further

ORDERED that All Defendants’ Motion to Dismiss 
or for Summary Judgment (docket number 42-1 and 42-2) is 
DENIED.

Signed this 3rd day of February, 1995.

s/s_____________________________
UNITED STATES DISTRICT JUDGE



12a

UNITED STATES DISTRICT COURT 
FOR THE FIFTH CIRCUIT

No. 95-40266

WINFRED WAYLON JACKSON, 

Plaintiff-Appellee,
v.

ATLANTA, TEXAS, CITY OF 

Defendant,
and

JIM LONG, Individually and His Capacity as City Manager; 
PEYTON CHILDS, Individually and in His Capacity as 
Mayor of the City of Atlanta, Texas; CHARLES RILEY, 
Individually and In His Capacity as City Councilman for the 
City of Atlanta, Texas; JOHN PIERCE ELLIS, Individually 
and In His capacity as City Councilman for the City of 
Atlanta, Texas; RANDALL LEE, Individually and In His 
capacity as City Councilman of the City of Atlanta, Texas,

Defendants-Appellants.

Appeal from the United States District court for the 
Eastern District of Texas, Marshall

ON PETITION FOR REHEARING 

(March 6, 1966)

Before WEINER, PARKER and DENNIS, Circuit Judges. 
PER CURIAM:



13a

IT IS ORDERED that the petition for rehearing 
filed in the above case is DENIED.
ENTERED FOR THE COURT:

s/s_____ ______ ___________
United States Circuit Judge