IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-41485
_____________________
ROY FOLEY, etc; ET AL,
Plaintiffs,
ROY FOLEY, Doctor; and NORA HUTTO, Doctor,
Plaintiffs-Appellees,
versus
UNIVERSITY OF HOUSTON SYSTEM; ET AL,
Defendants,
CHERYL HINES, Individually and in her official capacity as Chair of
the Division of Education at University of Houston Victoria; DIANE
PRINCE, Individually and in her official capacity as Dean/Chair of
the Division of Education at University of Houston Victoria; PAUL
CARLSON, Individually and in his official capacity as Professor in
the Division of Education at University of Houston Victoria; KAREN
HAYNES, Individually and in her official capacity as President of
University of Houston Victoria; and DON SMITH, Individually and in
his official capacity as Provost of University of Houston Victoria,
Defendants-Appellants.
________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
________________________________________________
March 6, 2003
Before EMILIO M. GARZA and CLEMENT, Circuit Judges,and HUDSPETH*,
District Judge.
HUDSPETH, District Judge:
_________________
*District Judge of the Western District of Texas,
sitting by designation.
1
In this interlocutory appeal, the Appellants request reversal
of a district court decision rejecting their claims to qualified
immunity. In reaching a decision, we are required to determine the
availability of a retaliation cause of action under 42 U.S.C. §
1981,the applicability of the defense of qualified immunity to such
a claim, and whether the Appellees are entitled to that defense
under the facts as determined by the district court. In the case
of one Appellee, Dr. Nora Hutto, we are also required to determine
whether her 42 U.S.C. § 1983 claim alleging violation of her First
Amendment rights can survive a defense of qualified immunity.
I. FACTS
Appellees Dr. Roy Foley and Dr. Nora Hutto are tenured members
of the faculty of the School of Education1 at the University of
Houston Victoria. Dr. Foley is black and Dr. Hutto is white. Dr.
Foley began his career at the University of Houston Victoria
(“UHV”) in 1989 as an assistant professor in the Education
Division. In 1993, he was appointed Chair of the Division. In
1994, after a vote of the faculty, he was removed as Chair and
succeeded by Dr. Diane Prince, one of the Defendant-Appellants. He
timely filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”), claiming racial discrimination in
his removal as Chair. The charge of discrimination was settled,
one of the terms of the settlement being that Dr. Prince step down
1
The School of Education was formerly known as the Division of
Education.
2
as Chair of the Division. In 1995, Dr. Foley was awarded tenure
and promoted to associate professor. In 1997, 1998, and 1999, he
applied for promotion to full professor, but was not promoted. In
1997 and 1999, he filed additional charges of discrimination2 with
the EEOC, contending that these failures to promote were motivated
by race discrimination and were in retaliation for his previous
EEOC charge of discrimination. The response of UHV was that it had
a policy not to promote an associate professor to the rank of full
professor until he or she had served six years at the associate
professor level. Dr. Foley countered by claiming this was pretext,
and that race and retaliation were the real reasons for his non-
promotion.3
Dr. Nora Hutto was appointed Chair of the Education Division
in February 1995, succeeding Dr. Prince. According to Dr. Hutto,
she became aware of the existence of a clique within the Education
Division led by Dr. Prince. Dr. Hutto became convinced that Dr.
Prince and her co-conspirators (allegedly including Dr. Hines and
Dr. Carlson) were “out to get” Dr. Foley; they not only opposed his
promotion, but also schemed to bring about his termination. Dr.
Hutto supported Dr. Foley, believing that he was being treated
unfairly. She blames Dr. Prince and her faction for causing her
own removal as Chair of the Division in August 1996. In July 1999,
2
Apparently no charge of discrimination was filed in 1998.
3
Dr. Foley was promoted to full professor in 2001.
3
she filed a charge of discrimination with the EEOC, alleging that
she had been removed as Chair in retaliation for her support of Dr.
Foley.4
On August 13, 1999, Drs. Foley and Hutto filed this suit.
They named as Defendants the University of Houston System;
University of Houston Victoria; the President of UHV (Dr. Karen
Haynes); the Provost of UHV (Dr. Don Smith); and three individual
professors in the Division of Education: the aforementioned Dr.
Prince, Dr. Hines, and Dr. Carlson. The complaint alleged causes
of action under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”); 42 U.S.C. § 1981
(“§ 1981"); 42 U.S.C. § 1983 (“§ 1983"), and for intentional
infliction of emotional distress under Texas common law. All
Defendants moved for summary judgment. The district court granted
the Defendants’ motions for summary judgment with respect to
Dr.Hutto’s Title VII and intentional infliction of emotional
distress claims and Dr. Foley’s Title VII and § 1981 claims of
race discrimination, his § 1983 First Amendment claim, and his
intentional infliction of emotional distress claim, as well as his
remaining claims against Drs. Hines, Haynes, and Smith. However,
the district court rejected the defense of qualified immunity with
respect to the claims that remain. The surviving claims include Dr.
4
Dr. Hutto’s EEOC charge also alleged sex discrimination. The
district court granted summary judgment as to this claim, and it is
not in issue in this appeal.
4
Foley’s claim of § 1981 retaliation against Dr. Prince and Dr.
Carlson5 and Dr. Hutto’s claims of § 1981 retaliation and § 1983
deprivation of First Amendment rights against all five individual
Defendants. Insisting that they are entitled to the defense of
qualified immunity with respect to all those claims, the individual
Defendants bring this interlocutory appeal.
II. APPELLATE JURISDICTION
A district court order denying a motion for summary judgment
based on qualified immunity, although interlocutory in nature, is
immediately appealable if it is based on a conclusion of law. Chiu
v. Plano Indep. Sch. Dist., 260 F.3d 330, 340 (5th Cir. 2001);
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 531 (5th Cir.
1997). In the instant case, the district court found the existence
of a genuine issue of material fact precluded summary judgment on
the basis of qualified immunity with respect to those claims at
issue in this appeal. The district court's determination that fact
issues are genuine is not appealable. However, his determination
that those fact issues are material, that is, that resolution of
them might affect the outcome of the case under governing law, is
appealable, and is before us today. Chiu, 260 F.3d at 341; Wagner
v. Bay City, 227 F.3d 316, 320 (5th Cir. 2000); Colston v. Barnhart
(“Colston II”), 146 F.3d 282, 284 (5th Cir. 1998).
5
The district court also denied summary judgment as to Dr.
Foley’s Title VII claim regarding hostile work environment. That
ruling is not in issue in this interlocutory appeal.
5
III. STANDARD OF REVIEW
This Court reviews de novo the district court's denial of a
motion for summary judgment based on a claim of qualified immunity.
Chiu, 260 F.3d at 342; Mendenhall v. Riser, 213 F.3d 226, 230 (5th
Cir. 2000).
IV. DISCUSSION
A. QUALIFIED IMMUNITY
In addressing the claim of a public official to qualified
immunity, we engage in a two-step analysis. First, we must
determine whether the plaintiff has made a sufficient showing that
the official violated a clearly established right. If the answer
is in the affirmative, we then ask whether the official’s actions
were objectively reasonable in light of the clearly established
right. Siegert v. Gilley, 500 U.S. 226 (1991).
The Appellants contend that their motion for summary judgment
based on qualified immunity should have been granted by the district
court. Claims against individual public officials6 under § 1981 are
subject to the defense of qualified immunity, Oden v. Oktibbeha
County, 246 F.3d 458, 464 n.4 (5th Cir. 2001); Todd v. Hawk, 72 F.3d
443, 445 n.7 (5th Cir. 1995); Wicks v. Mississippi State Employment
Services, 41 F.3d 991, 996 n.21 (5th Cir. 1995),as are claims
against such individuals under § 1983. Public officials are
6
Qualified immunity attaches only to officials in their
individual, not their official, capacities. Harvey v. Blake, 913
F.2d 226, 228 (5th Cir. 1990).
6
entitled to qualified immunity when “their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known”. Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). As noted earlier, the “reasonable person” step is
not reached unless the court first finds that the official violated
the plaintiff’s clearly established right. Siegert, 500 U.S. at
233-34.
B. SECTION 1981 RETALIATION CLAIMS
The Appellants contend that they are entitled to qualified
immunity with respect to the retaliation claims asserted by both Dr.
Foley and Dr. Hutto. First, they insist that § 1981 conferred no
clearly established right against retaliation. Second, they contend
that the district court erred in denying qualified immunity because
it failed to determine what specific unlawful acts of retaliation
were committed and whether reasonable public officials in the
positions of the Appellants knew or should have known that such acts
violated clearly established rights.
The Appellees contend that the right to be free from
retaliation for exercising rights protected by § 1981 was clearly
established by the Civil Rights Act of 1991. The district court so
held, and we agree.
In 1982, this Court held that § 1981 afforded a cause of action
to an employee who suffered retaliation in response to his filing
of an EEOC charge or law suit alleging racial discrimination. Goff
7
v. Cont'l Oil Co., 678 F.2d 593, 597-99 (5th Cir. 1982). The Court
explained the elements of that cause of action as (1) that the
plaintiff engaged in activities protected by § 1981; (2) that an
adverse employment action followed; and (3) that there was a causal
connection between the two. Goff, 678 F.2d at 599. Later case law
applied those principles to retaliation by public officials as well
as private employers. Irby v. Sullivan, 737 F.2d 1418, 1429-30 (5th
Cir. 1984)(recognizing a cause of action for retaliation against El
Paso County Sheriff).
In 1989, the Supreme Court decided Patterson v. McLean Credit
Union, 491 U.S. 164 (1989), a decision which marked a dramatic
change in § 1981 jurisprudence. The Supreme Court held that § 1981
covered “only conduct at the initial formation of the contract and
conduct which impairs the right to enforce contract obligations
through legal process.” Patterson, 491 U.S. at 179. The decision
eliminated § 1981 claims relating to discriminatory discharge or
retaliation. This Court, Patterson-bound, so held in Carter v.
South Central Bell, 912 F.2d 832, 838-41 (5th Cir. 1990).
Dissatisfied with Patterson’s interpretation of the 1866
statute (old § 1981), Congress legislatively reversed Patterson.
Rivers v. Roadway Express, Inc., 511 U.S. 298, 305 (1994); Nat'l
Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 713
(5th Cir. 1994). The Civil Rights Act of 1991, enacted November 21,
1991, expanded § 1981 to include “the making, performance,
8
modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual
relationship”. § 1981(b). Given that the 1991 Act legislatively
overruled Patterson, this Court was confronted on a previous
occasion with the question whether the Act also overruled Carter.
We found it unnecessary to resolve the issue in the context of that
case. Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d
364, 376 n.14 (5th Cir. 1998). Some of our sister circuits have
concluded that amended § 1981 now covers post-hiring retaliation
claims arising after November 21, 1991. Hawkins v. 1115 Legal Serv.
Care, 163 F.3d 684, 693 (2d Cir. 1998); Andrews v. Lake Shore Rehab.
Hosp., 140 F.3d 1405, 1411-13 (11th Cir. 1998). Further, this Court
has previously affirmed without opinion a district court decision
holding a retaliation claim to be actionable under § 1981(b). Thomas
v. Exxon, U.S.A., 943 F.Supp. 751, 761-63 (S.D. Tex. 1996), aff'd
122 F.3d 1067 (5th Cir. 1997). It seems unreasonable to believe
that in enacting the Civil Rights Act of 1991, Congress intended to
make the scope of the new § 1981(b) narrower than that of the old
§ 1981 as it had been interpreted by this Court and many other
federal courts before Patterson. We hold that an employee’s claim
that he was subjected to retaliation because he complained of race
discrimination is a cognizable claim under § 1981(b).
The district court found that at least since 1994 an
objectively reasonable public official should have been aware of an
9
employee's right to be free from retaliation for complaining about
race discrimination in employment. We agree with that finding.
Nevertheless, the Appellants are protected by qualified immunity
unless objectively reasonable officials in their position would have
been aware that the specific actions alleged and shown by summary
judgment proof violated the statutory rights conferred by § 1981.
The district court found that Dr. Foley had overcome the claims to
qualified immunity of Appellants Prince and Carlson only.7 That
finding is supported by the record. It is undisputed that Dr. Foley
engaged in conduct protected by § 1981 when he filed a formal
charge of race discrimination in December 1994. His non-promotion
from associate professor to the rank of full professor in 1997,
1998, and 1999 represented adverse employment actions. With
7
The district court properly applied the same summary judgment
criteria to the retaliation claims under § 1981 and Title VII
because they are parallel causes of action. Each requires proof of
the same elements in order to establish liability. Raggs v. Miss.
Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002); Shackelford
v. Deloitte & Touche, L.L.P., 190 F.3d 398, 403-04 n.2 (5th Cir.
1999); Irby, 737 F.2d at 1429. Unlike § 1981, however, relief
under Title VII is available only against an employer, not an
individual supervisor or fellow employee. See 42 U.S.C. §
2000e(b)(definition of “employer”); Grant v. Lone Star Co., 21 F.3d
649, 651-53 (5th Cir. 1994)(individual not liable under Title VII
unless he meets definition of “employer”). Dr. Foley's employer
was the University itself, and Haynes, Smith, and Hines, the
President, Provost, and Education Division Chair respectively, were
presumably the only officials whose acts or omissions could have
conferred Title VII liability for retaliation upon UHV. Thus,the
district court's grant of summary judgment with respect to the
Title VII retaliation claim is not inconsistent with the denial of
summary judgment as to the § 1981 retaliation claims against
Prince and Carlson individually.
10
reference to causal connection, the district court found genuine
issues of fact with respect to the following allegations by Dr.
Foley: that Prince and her allies (including Carlson) were angry
about Foley's successful charge of race discrimination; that Prince
and Carlson demonstrated continuing hostility toward him and
attempted to undermine his standing at UHV; that Carlson was on the
Tenure and Promotion Committee in 1997 and 1999 and Prince was on
the Committee in 1998, in each instance voting against promotion for
Foley; and that “the promotion decision was at all times under the
indirect and secret control of Dr. Prince”. Order Regarding Motion
for Summary Judgment, pp. 3,17. An objectively reasonable public
official in the years 1997 through 1999 would have known that
retaliating against a faculty member for exercising his legal right
to file an EEOC charge of discrimination was prohibited by law. If
Prince or Carlson performed the acts as to which the district court
found genuine fact issues, they are not protected by qualified
immunity.8
Dr. Hutto's retaliation claim does not fare as well. The
8
A panel of this Court has recently suggested that a § 1981
claim against a state employee must be asserted through § 1983.
Felton v. Tolles, 315 F.3d 470 (5th Cir. 2002). That opinion was
issued after oral argument in the instant case, and its bearing on
the issues in this case could not have been briefed by the parties.
We note, however, that the complaint in this case, although
rambling and vague, does assert § 1983 as a basis for recovery
(Plaintiffs' Original Complaint, para. 12). Upon remand, the
district court could consider granting leave to amend the pleadings
to clarify the relationship between sections 1981 and 1983 in
connection with Foley's retaliation claim.
11
record below fails to establish the second essential element of her
claim, i.e., that an adverse employment action occurred. Under our
jurisprudence, an adverse employment action means an ultimate
employment decision, such as hiring, granting leave, discharging,
promoting, and compensating. Dollis v. Rubin, 77 F.3d 777, 781-82
(5th Cir. 1995). The employment actions alleged by Hutto do not
meet that standard. Viewing the record in the light most favorable
to her, Hutto is complaining of the following employment actions on
the part of the Appellants: (1) they schemed to remove her as Chair
of the Education Division in August 1996, and to replace her with
Cheryl Hines; (2) they tried to undermine an important program
within the Division known as the Center for Professional Development
and Technology (CPDT), which reflected upon Hutto's leadership; (3)
Haynes and Hines reprimanded her for circulating unauthorized flyers
regarding the Administration and Education Program (AED) and
generally attempted to undermine that program; and (4) they refused
to attend the Phi Kappa Phi initiation ceremony the year that Hutto
was the president of the organization. None of these adverse
actions qualify as ultimate employment decisions. Her loss of the
title of Chair of the Division in August 1996 did not result in any
loss of compensation or benefits and she remained on the faculty as
a tenured professor. Furthermore, that particular claim is clearly
barred by the statute of limitations. The other listed allegations
fall far short of ultimate employment decisions. The district court
12
erred in rejecting the defense of qualified immunity with respect
to Dr. Hutto's § 1981 retaliation claim.9
C. SECTION 1983 FIRST AMENDMENT CLAIM
In order to establish a cause of action under § 1983 for an
employee’s First Amendment claim of retaliation, a plaintiff has the
burden of showing: (1) that she suffered an adverse employment
action; (2) as a result of speech involving a matter of public
concern; (3) that her interest in commenting on the matter of public
concern outweighed the defendant's interest in promoting efficiency,
and (4) that the adverse action was motivated by the protected
speech. Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220
(5th Cir. 1999). Speech that is primarily motivated by, or
primarily addresses, the employee’s own employment status rather
than a matter of public concern does not give rise to a cause of
action under § 1983. Connick v. Myers, 461 U.S. 138, 147 (1983);
Teague v. City of Flower Mound, 179 F.3d 377, 383 (5th Cir. 1999).
In connection with the § 1983 First Amendment claim asserted
by Dr. Hutto, the threshold question is whether she can show that
she was deprived of a clearly established right. We find that she
9
The Appellees argue that the Supreme Court has substituted a
much broader “tangible employment action” for our “ultimate
employment decision” doctrine. Burlington Indus. Inc. v. Ellerth,
524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775
(1998). However, the test for qualified immunity is whether the
Appellees have asserted the deprivation of a statutory right under
clearly established law. As of 1996, the Dollis definition of
“adverse employment action” as an ultimate employment decision was
the clearly established law in this Circuit.
13
has not crossed that threshold.
Retaliation by an employer for an employee’s speech is
actionable under § 1983 only if the speech addressed a matter of
public concern. Connick, 461 U.S. at 147. Whether it does so
depends on the content, context, and form of the statement in issue.
Id. If speech in a given case is of both public and private
concern, i.e., a “mixed speech” case, the court applies these three
factors to determine whether the speech is predominantly public or
predominantly private. Teague, 179 F.3d at 382. If it is
predominantly private, that is, if the individual spoke primarily
as an employee rather than as a citizen, it is not regarded as
addressing a matter of public concern. Teague, 179 F.3d at 382 n.4;
Ayoub v. Tex. A&M Univ., 927 F.2d 834, 837 (5th Cir. 1991).
Neither in the court below nor in this Court has Dr. Hutto
identified the precise speech which she claims to have addressed a
matter of public concern and to have triggered retaliation. The
district court acknowledged that “the basis for this claim is not
entirely clear from Dr. Hutto’s complaint.” Order Regarding Motion
for Summary Judgment, page 9. Her attempt to frame the issue in the
context of summary judgment was no improvement. Dr. Hutto argued
only that she “engaged in protected speech by utilizing internal
grievance procedures and filing charges with the Equal Employment
Opportunity Commission”. Plaintiffs' Response to Defendants' Motion
for Summary Judgment, page 43. In its order denying summary
14
judgment, the district court found that “racism at UHV is a matter
of public concern”; that “Dr. Hutto's free speech claim...is based
on her support of Dr. Foley and his claims of racial
discrimination...”; and that “the fact that Dr. Hutto made her
complaints privately, within the University of Houston system, does
not deprive them of their First Amendment character.” Order
Regarding Motion for Summary Judgment, page 10. In her brief in
this Court, Dr. Hutto asserts that racism and the existence of a
hostile work environment within a university are matters of public
concern. Appellees' Brief, pages 27-29. Still lacking, however,
is the precise identification of the speech as to which First
Amendment protection is claimed, which would permit consideration
of its content, context, and form as required by the Supreme Court.
Connick, 461 U.S. at 147. Since Dr. Hutto is claiming that the
Appellees retaliated against her for making statements protected by
the First Amendment, she is required to be specific as to when her
statement or statements were made, to whom they were made, whether
they were oral or written, and the content of those statements. If
she cannot do so, she cannot overcome the defense of qualified
immunity. Based on this record, we must conclude that Dr. Hutto has
failed to show the deprivation of a clearly established First
Amendment right.10
10
Dr. Hutto's EEOC charge of discrimination does make reference
to race discrimination against Dr. Foley and hostile work
environment. It cannot, however, constitute the protected speech
15
Even if Dr. Hutto were able to cite a specific example of
protected speech, she still could not overcome the defense of
qualified immunity because, as noted supra, she cannot show the
occurrence of an adverse employment action. Harrington v. Harris,
118 F.3d 359, 365-66 (5th Cir. 1997). The district court erred in
rejecting the defense of qualified immunity with respect to Dr.
Hutto's § 1983 First Amendment claim.
V. CONCLUSION
The district court’s denial of summary judgment as to Dr.
Foley’s retaliation claim under § 1981 is AFFIRMED. The d
enial of summary judgment as to Dr. Hutto’s claims is REVERSED. The
cause is remanded to the district court for further proceedings not
inconsistent with this opinion.
of which she complains, because it was submitted on July 19, 1999,
only twenty-five days before this suit was filed. There are no
allegations of retaliation against her during that twenty-five day
period.
16