1 United States Court of Appeals

Fifth Circuit



## FILED

December 18, 2003

Charles R. Fulbruge III

Clerk 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

________________________________________________* District Judge of the Western District of Texas,

sitting by designation.

1 The School of Education was formerly known as the Division of

Education.

2 Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and HUDSPETH *

, District Judge.

HUDSPETH, District Judge:

_________________

This Court's opinion, 324 F.3d 310 (5th Cir. 2003), is hereby

withdrawn, and the following opinion is substituted.

In this interlocutory appeal, the Appellants request reversal

of a district court decision rejecting their cla ims 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 Educa tion 1 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 Victoria2 Apparently no charge of discrimination was filed in 1998.

3 Dr. Foley was promoted to full professor in 2001.

3 ( “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 rem oved 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

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 discrimination 2 with

the EEOC, contending that these failures to promote were motivated

b y 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

prof essor 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 nonpromotion. 3

Dr. Nora Hutto was appointed Chair of the Education Division

in February 1995, succeeding Dr. Prince. Accordin g to Dr. Hutto,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 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,

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 Syst em;

U niversity of Houston Victoria; the President of UHV (Dr. Karen

Haynes); the Provost of UHV (Dr. Don Smith); and three individual

professors in the Divisi on 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 emotio nal distress under Texas common law. All

Defendants moved for summary judgment. The district court granted5 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 the Defendants’ motions for summary jud gment 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.

Foley’s claim of § 1981 retaliation agains t Dr. Prince and Dr.

Carlson 5 and Dr. Hutto’s claims of § 1 981 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 summar y judgment

based on qualified immunity, although int erlocutory in nature, is

immediately appealable if it is based on a conclusion of law. C hiu

v. Plano Indep. Sch. Dist., 2 60 F.3d 330, 340 (5th Cir. 2001);

Coleman v. Houston Indep. Sch. Dist., 113 F.3d 5 28, 531 (5th Cir.

1997). In the instant case, the district court found the existence

of a genuine issue of material fact precluded summary judgment on6

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. C hiu, 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).

III. STANDARD OF REVIEW

Th is Court reviews d e 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 constitutional or

statutory 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. S iegert v. Gilley, 500 U.S. 226

(1991).

The Appellants contend that their motion for summary judgment7

based on qualified immunity should have been granted by the district

court. Qualified immunity attaches only to officials in their

individual, not their official, capacities. H arvey v. Blake, 913

F.2d 226, 228 (5th Cir. 1990). Of course, the issue of qualified

immunity aris es only if the individual official is subject to

liability in the first place, and § 1981 liability does not

necessarily run to all individual defendants. We recently noted in

Felton v. Polles, 315 F.3d 470 (5th Cir. 2002), that it has not yet

been decided “whether a § 1981 claim lies against an individual

defendant not a party to the contract giving rise to a claim.” Id.

at 480. We have, however, accepted that § 1981 liability will lie

against an individual defendant if that individual is “'essentially

the same' as the State for the purposes of the com plained-of

con duct.” I d. at 481 (quoting Bellows v. Amoco Oil Co., 118 F.3d

268, 274 (5th Cir. 1997)). In the instant case, the district court

found genuine issues of material fact as to whether the Appellants

exercised control over the faculty positions and titles held by Dr.

Foley and Dr. Hutto. If so, the Appellants were “essentially the

same” as UHV for purposes of the retaliatory conduct alleged in this

case. S ee Al-Khazraji v. St. Francis College, 784 F.2d 505, 518 (3d

Cir. 1986)(holding that plaintiff could bring a § 1981 claim against

individual members of a tenure committee if those individuals were

personally involved in the discrimination ac t ion); see also,

Bellows, 118 F.3d at 274 (citing Al-Khazraji with approval and6 The panel in Od en specifically limited that holding to the

liability of local government officials for decisions affecting

municipal employment contracts. 246 F.3d at 464 n.5.

7 Cases from other circuits have suggested situations in which §

1981 liability may lie against individual defendants. See e.g., Whidbee

v. Garzarelli Food Specialties, Inc., 2 23 F.3d 62, 75 (2nd Cir. 2000);

Cardenas v. Massey, 269 F.3d 251, 268-9 (3d Cir. 2001); Johnson v.

University of Cincinnati, 215 F.3d 561, 571 (6th Cir. 2000); T urner v.

Ark. Ins. Dept., 297 F.3d 751, 754 (8th Cir. 2002); Allen v. Denver Pub.

Sch. Bd., 928 F.2d 978, 983 (10th Cir. 1991); see also, Al- Khazraji,

784 F.2d at 518 (characterizing § 1981 as a tort remedy, such that nonemployer defendants may be liable); Cf. Goodman v. Lukens Steel Co., 482

U.S. 656, 661 (1987)(hold ing that § 1981 has a much broader focus than

contractual rights and approving application of a tort statute of

limitations to a § 1981 claim); Taylor v. Bunge Corp., 775 F.2d 617,

618 (5th Cir. 1985)(holding that § 1981 is best characterized as a tort

under Louisiana law).

8 interpreting Faraca v. Clements, 506 F.2d 956 (5th Cir. 1975)).

We recognize that there is a tension between our decisions in

Bellows (which cites Faraca ) and Oden v. Oktibbeha County, Mi s s.,

246 F.3d 458 (5th Cir. 2 001) (which does not cite F araca ) with

respect to the liability of individual defendants who are not

parties to the emp loyment contract. However, we do not believe

that this is the proper case in which to decide the outer boundaries

of § 1981 liability as it applies to individual non-employer

defendants, 6 nor to attempt to catalogue every fact situation which

might subject an individual to such liability. 7 Instead, we proceed

to determine whether Appellants Prince and Carlson are entitled to

qualified immunity.

Claims against individua l public officials under § 1981 are

subject to the defense of qualified immunity, Todd v. Hawk, 72 F.3d9

443, 445 n.7 (5th Cir. 1995); Wicks v. Mississippi State Employment

S ervices, 41 F.3d 991, 996 n.21 (5th Cir. 1995), as are claims

against such i ndividuals under § 1983. C oleman, 113 F.3d at 534.

Public offi cials are entitled to qualified immunity when “their

conduct does not violate clearly established statutory or

constitut ional rights of which a reasonable person would have

known.” H arlow 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 conduct alleged by the plaintiff, if

proved, would constitut e a violation of his clearly established

rights. Siegert, 500 U.S. at 233-34.

B. SECTION 1981 RETALIATION CLAIMS

The Appe llants 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 a c ts 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 co ntend 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 so10

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. G off

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 p rotected by § 1981; (2) that an

adverse employment action followed; and (3) that there was a causal

connection between the two. G off, 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

c onduct which impairs the right to enforce contract obligations

through legal process.” P atterson, 491 U.S. at 179. The decision

eliminated § 1981 claims relating to discriminatory discharge or

retaliation. This Court, P atterson -bound, so held in Carter v.

South Central Bell, 912 F.2d 832, 838-41 (5th Cir. 1990).

Dissatisfied with Patterson’ s interpretatio n of the 1866

statute (old § 1981), Congress legislatively reversed Patterson

.11

Rivers v. Roadway Express, Inc., 511 U.S. 298, 305 (1994); N at'l

Ass'n of Gov't Empl oyees v. City Pub. Serv. Bd., 4 0 F.3d 698, 713

(5th Cir. 1994). The Civil Rights Act of 1991, enacted November 21,

1991, expanded § 1981 to include “the making, performance,

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 previ o us

occasion with the question whether the Act also overruled C a rter

.

We found it unnecessary to resolve the issue in the context of that

case. D ouglas v . DynMcDermott Petroleum Operations Co., 1 44 F.3d

364, 376 n.14 (5th Cir. 1998). Some of our sister circuits have

co n cluded that amended § 1981 now covers post-hiring retaliation

claims arising after November 21, 1991. H awkins 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. T ex. 1996), a ff'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 t han that of the old

§ 1981 as it had been interpreted by this Court and many other

federal courts before Patterson. W e hold that an employee’s claim8 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. R aggs v. Miss.

Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002); Shackelford

v. Deloitte & Touche, L.L.P., 1 90 F.3d 398, 403-04 n.2 (5th Cir

. 1999); Irby, 7 37 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 4 2 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 Hi nes, 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.

12 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

employee's right to be free from retaliation for complaining about

race discriminat ion 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 a lleged 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. 8 That

finding is supported by the record. It is undisputed that Dr. Foley9 In Felton, we held that a § 1981 claim against a state employee

must be asserted through § 1983. F elton, 315 F.3d at 482-83. 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 §§ 1981 and 1983 in

connection with Foley's retaliation claim.

13 e ngaged 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

refe r ence to causal connection, the district court found genuine

issues of fact w ith respect to the following allegations by Dr.

Foley: that Prince and her allies (inclu ding Carlson) were angry

about Foley's successful charge of race discrimination; that Prince

and Carlson demonstrated con t inuing 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 Pri nce 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”. O rder 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. 9 If

Prince or Carlson performed the acts as to which the district court

found genuine fact issues, they are not protected by qualified14

immunity. Although the burden of proving Dr. Foley's claim may be

a difficult one to bear, the existence of genuine, material fact

issues entitle him to a trial.

Dr. Hutto's retaliation cl aim does not fare as well. The

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. D ollis 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 repla ce her with

Ch e ryl 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 of10 The Appellees argue that the Supreme Court has substituted

a much broader “tangible employment action” for our “ultimate

employment decision” doctrine. B urlington 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 D ollis defi nition of

“adverse employment action” as an ultimate employment decision was

the clearly established law in this Circuit.

15 compensati on or benefits and she remained on the faculty as a

tenured pro fessor. 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

erre d in rejecting the defense of qualified immunity with respect

to Dr. Hutto's § 1981 retaliation claim. 10

C. SECTION 1983 FIRST AMENDMENT CLAIM

In or d er 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) t h at 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 t he adverse action was motivated by the protected

speech. H arris v. Victoria Indep. Sch. Dist., 168 F.3d 21 6, 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

a ction under § 1983. C onnick v. Myers, 461 U.S. 138, 147 (1983);16

Teague v. City of Flower Mound, 179 F.3d 377, 383 (5th C ir. 1999).

In connectio n 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

has not crossed that threshold.

Retaliation by an empl oyer for an employee’s speech is

actionable under § 1983 only if the speech add ressed a matter of

public concern. C onnick, 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. T eague, 179 F.3d at 382. If it is

predomi nantly private, that is, if the individual spoke primarily

as an employee rathe r than as a citizen, it is not regarded as

addressing a matter of public concern. T eague, 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 b elow 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 fo r this claim is not

entirely clear from Dr. Hutto’s complaint.” O rder Regarding Motion

for Summary Judgment

, page 9. Her attempt to frame the issue in the

context of summary judgment was no improvement. Dr. Hutto argued17

only that she “engaged in protected speech b y utilizing internal

grievance p rocedures and filing charges with the Equal Employment

Opportunity Commission”. Plaintiffs' Response to Defendants' Motion

for Summary Judgment, page 43. In its order denying summary

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

discrimina t ion...”; 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 Judgmen t, page 10. In her brief in

this Court, Dr. Hu tto asserts that racism and the existence of a

hostile work environment within a university are matters of public

concern. A ppellees' Brief, pages 27-29. Still lacking, however,

is the precise identification of the speech as to which First

Amendment protection is claime d, which would permit consideration

of its content, context, and form as required by the Supreme Court.

Connick, 4 61 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 d o so, she cannot overcome the defense of qualified

immunity. Based on this record, we must conclude that Dr. Hutto has11 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

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.

18 failed to show the deprivation of a clearly established First

Amendment right. 11

Even if Dr. Hutto were able to cit e a specific example of

protected speech, she s till could not overcome the defense of

qualified immunity because, as noted su pra , she cannot show the

occurrence of an adverse employment action. H arrington v. Harris,

118 F.3d 359, 365-66 (5th Cir. 1997). The district court erred in

rejecting the defense of qualified immunity with re spect 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 denial 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.