William Chavis v. Clayton County School District, 300 F.3d 1288, 11th Cir. (2002)

300 F.
3d 1288
William CHAVIS, Plaintiff-Appellant,

v.
CLAYTON COUNTY SCHOOL DISTRICT, Joe A. Hairston,
Ozias Pearson, individually and agents and employees of
Clayton County School District, Defendants-Appellees.
No. 01-11981.
United States Court of Appeals, Eleventh Circuit.

August 6, 2002.
Terry Dale Jackson, Atlanta, GA, for Plaintiff-Appellant.

Glenn S. Bass, Goldner, Sommers, Scrudder & Bass, Atlanta, GA, for
Defendants-Appellees.
Appeal from the United States District Court for the Northern District of
Georgia.
Before EDMONDSON, Chief Judge, and DUBINA and COX, Circuit
Judges.
EDMONDSON, Chief Judge:
Dr. William Chavis ("Plaintiff") appeals the district court's grant of summary
judgment for the Clayton County School District ("CCSD") and for the
individual defendants on his federal civil rights and pendent state claims. We
mainly must determine whether plaintiff has presented evidence supporting a
cause of action under the second clause of 42 U.S.C. 1985(2). We say "yes."
We affirm in part and vacate in part and remand.
BACKGROUND
2
Plaintiff was hired by CCSD as the Director of Certified Personnel. Part of

Plaintiff's job was to investigate complaints of misconduct against teachers and
other professionals. Plaintiff's immediate boss was Ozias Pearson ("Pearson"),
CCSD's Executive Director for Human Resources and Instructional Services.
Pearson's immediate supervisor was Joe Hairston ("Hairston"), the

Superintendent of CCSD. Plaintiff, Pearson, and Hairston are black men.
3
Plaintiff presented evidence that Pearson and Hairston, on the basis of race,
discriminated against white teachers within the CCSD.1 One of the incidents of
discrimination involved a teacher, DW. DW, a white female, was accused of
entering into a sex-for-grades arrangement with a 16 year-old black, male
student. Plaintiff testified at his deposition that he believed that "[DW] was ... a
victim of a witch-hunt and I think that she was discriminated against.... I don't
think that she was given a chance." Plaintiff was assigned to a three-person
panel to investigate the allegations against DW. In his deposition, Plaintiff also
testified that Defendants had early conversations with one of the panel
members about the expected outcome of that investigation, that Plaintiff
believed that Defendants wanted the panel to conclude that DW had sexual
contact with the 16 year-old boy, and that the panel found insufficient evidence
to conclude that DW had sex with the student. The panel recommended,
however, that the entire case be reviewed by the Professional Practices
Commission (PPC) and that DW be placed on administrative leave, with pay,
pending review of the panel's investigation.
After the panel made its recommendation, Hairston sent DW a letter

temporarily relieving her of her teaching duties pending a hearing before the
Board of Education or the PPC.2 This letter informed DW that, at a future
hearing, evidence that she had engaged in sexual relations with the student
would be presented. At his deposition, Plaintiff testified that he expressed his
concern that DW's suspension did not comply with the requirements of the state
statute governing the suspension and termination of education employees
(O.C.G.A. 20-2-940). Plaintiff further testified that the proper procedures
were not implemented to allow DW to defend herself against the accusations.
Plaintiff testified that he raised these objections with Hairston.
After completing the investigation, Plaintiff was ordered by Pearson to appear

at a state magistrate court hearing where the court was attempting to determine
whether probable cause existed to arrest DW. Although Plaintiff's brief claims
that Plaintiff was ordered to give favorable testimony for the student-accuser,
Plaintiff testified at his deposition that Pearson only ordered Plaintiff to go to
the hearing to see if DW changed her story. Plaintiff has never sworn that
Pearson sent him to testify or that Pearson told him to testify untruthfully.
Plaintiff, although objecting, did go to the magistrate court hearing and did
testify there. Plaintiff has said that he testified at the magistrate hearing
consistent with his recollection of the panel investigation. The magistrate court
concluded that insufficient probable cause existed to issue an arrest warrant for
DW.3 Plaintiff claims that Pearson and Hairston responded to his testimony
which was helpful to DW at the magistrate hearing by instituting, or
attempting to institute, several adverse employment acts against him, including
his ultimate demotion from his position as Director of Certified Personnel.
7
Plaintiff filed suit against the CCSD and against Pearson and Hairston in their
individual and official capacities (collectively "Defendants"). Plaintiff alleged
that Defendants did these things: (a) conspired to retaliate against him for his
testimony in the DW case and for providing assistance to others in their federal
civil litigation, in violation of section 1985(2); (b) retaliated against him, in
violation of section 1983, for uttering protected speech; and, (c) violated state
law. After some discovery, the district court granted Defendants summary
judgment on the section 1985(2) and section 1983 claims and declined to
exercise pendent jurisdiction over the remaining state law claims. Plaintiff
appeals only the grant of summary judgment on the section 1985(2) and section
1983 claims.4
DISCUSSION
8
Determining whether Plaintiff has presented evidence to support a claim under

the second clause of section 1985(2) requires that we focus on the words of this
clause of the statute. Title 42, Section 1985(2) of the United States Code, in
pertinent part, makes it unlawful for people to engage in certain conspiracies:
[To] conspire for the purpose of impeding, hindering, obstructing, or defeating,

in any manner, the due course of justice in any State or Territory, with intent to
deny to any citizen the equal protection of the laws, or to injure him or his
property for lawfully enforcing, or attempting to enforce, the right of any
person, or class of persons, to the equal protection of the laws;
10
42 U.S.C. 1985(2) (1994).
11
Section 1985(3) provides private parties a cause of action for violation of

section 1985(2).
12
[I]n any case of conspiracy set forth in this section, if one or more persons
engaged therein do, or cause to be done, any act in furtherance of the object of
such conspiracy, whereby another is injured in his person or property, or
deprived of having and exercising any right or privilege of a citizen of the
United States, the party so injured or deprived may have an action for the
recovery of damages occasioned by such injury or deprivation, against any one

or more of the conspirators.
13
Id. 1985(3) (emphasis added). We understand the word "party" to encompass

the preceding word "another," that is, a person to which the conspiracy relates:
"another" ="party" = victim. We do not agree that the word "party" means only
a person who was a named party in an earlier case. See Heffernan v. Hunter,
189 F.3d 405, 410-11 (3rd Cir.1999); Brever v. Rockwell Intern. Corp., 40 F.3d
1119, 1125 n. 7 (10th Cir.1994); but see Blankenship v. McDonald, 176 F.3d
1192, 1196 (9th Cir.1999); Rylewicz v. Beaton Services, Ltd., 888 F.2d 1175,
1180 (7th Cir.1989); cf. McAndrew v. Lockheed Martin Corp., 206 F.3d 1031,
1036 n. 2 (11th Cir.2000) (en banc) (permitting a claim under section 1985(2)
for retaliation against a witness who testified before a federal grand jury).
14
According to the Supreme Court, the Reconstruction civil rights acts, such as
section 1985, are to be "accord(ed) [] a sweep as broad as (their) language."
Griffin v. Breckenridge, 403 U.S. 88, 97, 91 S.Ct. 1790, 1796, 29 L.Ed.2d 338
(1971) (citations omitted). We keep this consideration in mind as we examine
the second clause of section 1985(2). The second clause of section 1985(2)
expressly supports a cause of action against private conspiracies which seek to
injure a person "for lawfully enforcing, or attempting to enforce, the right of
any person, or class of persons, to the equal protection of the laws." 42 U.S.C.
1985(2). The "equal protection" language included in the second clause of
section 1985(2), requires an allegation of class-based animus for the statement
of a claim. See Griffin, 403 U.S. at 102, 91 S.Ct. at 1798 (stating that under
section 1985(3) the language requiring an intent to deprive of equal protection
means there must be some racial, or perhaps otherwise class-based individually
discriminatory claims behind the conspirators' action). In this case, racial
animus was alleged and is supported by some evidence. We think the clause's
language covers Plaintiff's case.
15
In considering the scope of the second clause of section 1985(2), we have also
taken "cognizance of the events and passions of the time at which it was
enacted." District of Columbia v. Carter, 409 U.S. 418, 425, 93 S.Ct. 602, 606,
34 L.Ed.2d 613 (1973) (analyzing section 1983 case). The legislative history
behind the Act reflects that, at the time the Ku Klux Klan Act of 1871 was
enacted, the 42d Congress was concerned about the insecurity of life and
property in the South following the Civil War. 409 U.S. at 425, 93 S.Ct. at 607
(citing Cong. Globe, 42d Cong., 1st Sess., 116-117). Discrimination on the
basis of race was at the heart of this concern. A principal concern of the 42d
Congress was to protect newly-emancipated blacks, and those who championed
them, against conspiracies to violate their civil rights, including acts of
retribution against those supporting the civil rights of black people.5 See United
Broth. of Carpenters and Joiners of America, Local 610, AFL-CIO v. Scott, 463
U.S. 825, 836, 103 S.Ct. 3352, 3360, 77 L.Ed.2d 1049 (1983) (discussing
legislative history in context of section 1985(3) claim); see also Cong. Globe,
42 Cong., 1st Sess., 157; id. at App. 190-93.
16
We know that, although the first clause of section 1985(2) specifically prohibits
injuring a witness on account of his testifying in federal court, the second
clause does not specifically mention injuring witnesses on account of testifying
in state court. That the same language was not included in the second clause did
give us pause. See generally United States v. DBB, Inc., 180 F.3d 1277, 128182 (11th Cir.1999). If Congress had specifically spelled out that retaliation
against a witness who testified in a state court proceeding was prohibited, our
job would be easier. But we recognize that it is possible for Congress to
encompass the same meaning in different words, and we again recall the
history. See id. at 1283 ("[w]hen interpreting an ambiguous statute, a court
should consider the purpose, the subject matter and the condition of affairs
which led to its enactment, and so construe it as to effectuate and not destroy
the spirit and force of the law and not to render it absurd") (quotation and
citation omitted).
17
Based upon the language of the statute and fortified by the history, we are
convinced that, although language about injuring a "witness" on account of his
having "testified" is absent, the language in the second clause of section
1985(2) includes a cause of action for race-based retaliation against witnesses
who truthfully testify in state criminal proceedings.
18
Accepting Chavis's allegations as true and reading the record in his favor, we
conclude that the complained-about activities state a claim under the second
clause of section 1985(2) in this case. Plaintiff alleges and has evidenced that
Defendants (because of their racial animosity towards DW) retaliated against
Plaintiff that is, sought to injure him for truthfully testifying to her
advantage at a criminal proceeding, that is, for attempting to enforce DW's right
to the equal protection of the laws.6
19
Although Defendants' racial animosity was not aimed at Chavis's own race
directly, it was aimed at him because of his testimony, an act that enforced
DW's a person who Defendants wished to hinder on account of her race
right to equal protection of the law. We do conclude that such race-based
retaliatory efforts tied to criminal proceedings in the state courts do implicate
the criminal defendant's (in this case, DW's) right to equal protection of the
law. See generally Powers v. Ohio, 499 U.S. 400, 415, 111 S.Ct. 1364, 1373,
113 L.Ed.2d 411 (1991) (intentional racial discrimination tied to the

administration of criminal justice violates equal protection rights); Griffin v.
Illinois, 351 U.S. 12, 17, 76 S.Ct. 585, 589-90, 100 L.Ed. 891 (1956) ("equal
protection ... emphasize[s] the central aim of our entire judicial system all
people charged with crime must, so far as the law is concerned, stand on an
equality before the bar of justice in every American court")(quotation and
citation omitted) (emphasis added). Furthermore, given the words of the second
clause, we believe that race-based retaliatory conduct aimed against a person
who testified truthfully in criminal court in a way that was helpful to a person of
a particular race the "wrong" race in Defendants' eyes is within the
borders of the kind of behavior that Congress sought to prevent and punish in
enacting the second clause of section 1985(2). See Cong. Globe 42d Cong., 1st
Sess., App. 190 ("The apprehension of violence prevents good men from
arresting the evils they see").
20
Chavis's evidenced allegations that Defendants (because of their racial

animosity towards DW) retaliated against Chavis for truthfully testifying to
DW's advantage in court could support a claim under section 1985(2). The
district court's determination to the contrary was error. Therefore, except for the
section 1983 claim, we vacate the summary judgment and remand the case so
the district court may consider whether summary judgment is otherwise
appropriate.7 Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 n. 4 (11th
Cir.2001).
21
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
Notes:
1
Because summary judgment was granted to Defendants, we resolve all factual

disputes in favor of Plaintiff's version of eventsSee Brent v. Ashley, 247 F.3d
1294, 1297 n. 1 (11th Cir.2001). The assumed "facts" may turn out to be no
more than a fable.
At least one member of the Board of Education expressed concerns about the
procedures used by the school administration in suspending DW. In October
1997, the PPC exonerated DW of all charges
Later, in June 1998, DW was indicted by a grand jury for the same charges; but
she eventually was exonerated after a jury trial
We affirm the district court's grant based on its application of thePickering
balancing test of summary judgment to Defendants on Plaintiff's section

1983 claim. Plaintiff has abandoned his claim that the Defendants retaliated
against him for assisting in the federal civil litigation of others. See Greenbriar,
Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989) (issues not
argued on appeal are deemed waived, and a passing reference in an appellate
brief is insufficient to raise an issue). Chavis argues on appeal that Hairston, in
violation of the first clause of section 1985(2), is being paid for his testimony
in the instant federal case. Chavis advanced this contention in his brief to the
district court in response to the defendants' motion for summary judgment.
Chavis did not seek to amend his complaint to add a claim based on the asserted
conduct, and the district court did not specifically address this contention. See
Fed.R.Civ.P. 15(a); Marsh v. Butler County, Ala., 268 F.3d 1014, 1035 n. 15
(11th Cir.2001) (en banc) (affirming dismissal of complaint where plaintiffs did
not seek to amend the complaint in district court and did not argue on appeal
that they should have been allowed to do so). We do not regard this kind of
claim as properly before us; we note however, that it is not obvious that such an
allegation would state a claim under the first section of 1985(2). See Haddle v.
Garrison, 525 U.S. 121, 125, 119 S.Ct. 489, 492, 142 L.Ed.2d 502 (1998)
("The gist of the wrong at which 1985(2) is directed is ... [the] intimidation or
retaliation against witnesses in federal-court proceedings").
5
Section 1985(2) uses words like "any citizen" and "any persons." In enacting
post-Civil War legislation, Congress's immediate concern was the plight of
newly-emancipated blacks and those who championed their cause, but these
laws protect against all kinds of race-based discriminationSee McDonald v.
Santa Fe Trail Transportation Co., 427 U.S. 273, 295-96, 96 S.Ct. 2574, 2586,
49 L.Ed.2d 493 (1976) (determining that white plaintiff could raise claim of
discrimination under 42 U.S.C. 1981); Mitchum v. Foster, 407 U.S. 225, 239
n. 30, 92 S.Ct. 2151, 2160 n. 30, 32 L.Ed.2d 705 (1972) (noting in section 1983
case that the Civil Rights Act of 1871 provides a civil remedy to all people, not
just for those "whose former condition may have been that of slaves")
(quotation and citation omitted); Park v. City of Atlanta, 120 F.3d 1157, 116162 (11th Cir.1997) (stating that non-blacks are protected under section
1985(3)); cf. Lyes v. City of Riviera Beach, Fla., 166 F.3d 1332, 1338 (11th
Cir.1999) (en banc) (stating that women are a protected class under section
1985(3)); see generally Griffin, 403 U.S. at 102, 91 S.Ct. at 1798 (stating that
under section 1985(3) there must be "some racial, or perhaps otherwise classbased, invidiously discriminatory animus behind the conspirators' action").
The Oxford English Dictionary defines "enforce" as "To strengthen ... to impart
resolution or fortitude to ... to encourage." Oxford English Dictionary, Vol. V,
244 (1989)
Because the district court determined that Chavis failed to present a plausible
theory that would satisfy section 1985(2), the district court did not address
whether CCSD could be held liable for Hairston and Pearson's alleged acts,
whether the alleged retaliation is causally connected to the adverse employment
acts, or whether affirmative defenses are applicable. We express no opinion on
these issues, but leave them to the district court to determine in the first instance

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300 F.

William CHAVIS, Plaintiff-Appellant,

United States Court of Appeals, Eleventh Circuit.

Terry Dale Jackson, Atlanta, GA, for Plaintiff-Appellant.

Plaintiff was hired by CCSD as the Director of Certified Personnel. Part of

Pearson's immediate supervisor was Joe Hairston ("Hairston"), the

After the panel made its recommendation, Hairston sent DW a letter

After completing the investigation, Plaintiff was ordered by Pearson to appear

Determining whether Plaintiff has presented evidence to support a claim under

[To] conspire for the purpose of impeding, hindering, obstructing, or defeating,

42 U.S.C. 1985(2) (1994).

Section 1985(3) provides private parties a cause of action for violation of

recovery of damages occasioned by such injury or deprivation, against any one

Id. 1985(3) (emphasis added). We understand the word "party" to encompass

113 L.Ed.2d 411 (1991) (intentional racial discrimination tied to the

Chavis's evidenced allegations that Defendants (because of their racial

AFFIRMED IN PART, VACATED IN PART AND REMANDED.

Because summary judgment was granted to Defendants, we resolve all factual

We affirm the district court's grant based on its application of thePickering

balancing test of summary judgment to Defendants on Plaintiff's section

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