* Pursuant to 5TH CIR. R. 47.5, this Court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40261

STEVE COOLEY

Plaintiff-Appellee

v.

FIRE CHIEF GERALD GRIMM, In His Official and Individual Capacity

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 3:06-CV-234

Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Gerald Grimm, Fire Chief of the Texas City Fire

Department (“Fire Department”), appeals the district court’s denial of his motion

for summary judgment seeking dismissal on the grounds of qualified immunity

from the 42 U.S.C. § 1983 First Amendment retaliation suit filed by PlaintiffAppellee Steve Cooley, an Engineer with the Fire Department, who was

bypassed for promotion to Captain. For the following reasons, we hold that we

United States Court of Appeals

Fifth Circuit

F I L E D

April 3, 2008

Charles R. Fulbruge III

Clerk
No. 07-40261

1 Because the district court failed to set forth in its order the factual disputes that

precluded granting summary judgment in detail, this Court must “undertake [a] cumbersome

review of the record to determine what facts the district court, in the light most favorable to

the nonmoving party [Cooley], likely assumed.” Johnson v. Jones, 515 U.S. 304, 319 (1995).

2 The current list of ranks in the Fire Department are as follows: Chief, Captain,

Engineer, and Fire Fighter. Although the rank of Assistant Fire Chief was created in 2004,

it was eliminated in early 2005, due to pressure from the Association. 

2

lack appellate jurisdiction to consider the district court’s interlocutory order and

DISMISS Grimm’s appeal.

I. FACTS AND PROCEEDINGS1

A. Facts

Texas City (“the City”) has a professional Fire Department. Grimm has

held the rank of Chief since 1991, and Cooley has held the rank of Engineer

since November 1998. Cooley is a member and elected officer of the Texas City

Fire Fighters Association (“the Association”), the bargaining representative of

the fire fighters. The Fire Department operates under a Collective Bargaining

Agreement (“CBA”) and the Fire Fighter and Police Officer Civil Service Act,

Texas Local Government Code Chapter 143. Each year, the City and the

Association negotiate a successor CBA. 

Grimm makes promotions in the Fire Department using competitive

procedures mandated by the civil service law.2 The highest-ranked candidate on

the promotional eligibility list––based upon test scores and seniority––must be

considered first for promotion; however, Grimm may bypass this candidate if he

has a “valid reason.” Beginning in spring 2004, a series of events occurred that

created three vacancies in the rank of Captain. Captains work closely with the

Fire Chief in managing the Fire Department. At all relevant times, Cooley was

ranked first and Joe Tumbleson was ranked second. 
No. 07-40261

3

(1) Early 2004 vacancy and June 2004 offer of promotion to Cooley

At some time prior to June 2004, Fire Marshal Ken Jones retired, creating

the first vacancy for Captain. On June 18, 2004, Grimm offered Cooley a

promotion. It was for a forty-hour-per-week, Monday-through-Friday

administrative position. Cooley declined this promotion because personal

commitments required that he maintain his then-current shift schedule.

Tumbleson also declined.

(2) June 2004 through September 2004 union negotiations 

In June 2004, the City and the Association began their annual

negotiations for a successor CBA, which generally concern the wages, hours, and

working conditions of the fire fighters. Grimm, the Mayor of the City, and the

City’s attorney represented the City. Cooley, Captain Harmon Hart, and Fire

Fighter Mark Pandanell, among others, represented the Association. During

these negotiations, the City took the position that it wanted to eliminate the

“prevailing rights” provision in the CBA. Under this provision, working

conditions not specifically identified in the CBA itself are nonetheless protected

during the life of the agreement. The Association did not agree with the City’s

position. Negotiations grew increasingly contentious and continued throughout

late summer and into September 2004. Ultimately, the City and the Association

reached an impasse. 

Cooley admitted to being a vocal and forceful member of the Association’s

bargaining team. Other team members recalled Cooley being forceful, but they

stated that he was never discourteous to members ofthe City’s bargaining team.

Nonetheless, then-Assistant Fire Chief Robert Baker stated that Grimm

discussed Cooley’s role and behavior in the negotiations with him on several
No. 07-40261

4

occasions. Given Grimm’s reaction and description of the events, Baker

interpreted Grimm’s perception of Cooley’s behavior “disrespectful.” 

(3) July 2004 vacancy and November 2004 promotional bypass of Cooley

On July 7, 2004, the City created the rank of Assistant Fire Chief. On

July 22, 2004, Grimm promoted Captain Baker to Assistant Fire Chief, creating

a second vacancy for Captain. Even though local law required Grimm to make

the promotion within sixty days of its opening, he did not do so. Shortly after

this deadline expired, Cooley, who was still first on the promotional eligibility

list, filed an Association grievance contesting Grimm’s failure to promote him.

After Cooley filed his grievance, numerous activities occurred regarding

his candidacy for promotion. They are summarized as follows:

(a) Baker’s Initial Memorandum: In late September/early

October 2004, Baker submitted an unsigned memorandum to

Grimm, stating that Cooley needed to spend less time on union

activities when he was on duty. In line with this letter, Grimm

confirmed that Baker informed him on numerous occasions in 2004

that Cooley engaged in improper union activities while on duty. 

(b) Sowell’s Series of Letters: On October 4 and 10, 2004, Captain

Oseeg Sowell submitted a series of letters to Grimm, referencing

Cooley’s on-duty union activities and stating that Cooley had a lack

of respect for authority. 

(c) Cooley’s Interview and Baker’s Final Memorandum: In

mid-October 2004, Grimm instructed Baker and Sowell to review

and make a recommendation regarding Cooley’s candidacy. As part

of this process, for the first time in any Fire Department promotion,

Grimm ordered Baker and Sowell to interview Cooley. The

interview occurred on October 15, 2004, about the time that the

CBA negotiations stalled. Grimm provided Baker and Sowell with
No. 07-40261

3 Specifically, one of the questions that Grimm instructed Baker to ask was: 

Based upon my limited interaction with you as an Assistant

Chief, you appear to be engaged in the deliberate propagation of

negativity with your subordinates and the propagation of union

philosophy while on duty. Do you believe that type of conduct is

appropriate for employees, especially those holding supervisory

positions?

4 Notably, this incident occurred prior to June 2004, when Grimm had actually offered

a promotion to Cooley.

5

a list of questions, one of which related to union activity.3 Based

upon this interview, their personal observations, and some limited

third-party information, Baker and Sowell wrote a recommendation

that urged Grimm to bypass Cooley. Grimm admitted that he asked

them to rewrite the recommendation twice before he accepted it.

The final version, signed only by Baker and dated October 19, 2004,

stated that although Cooley was technically very capable, he lacked

leadership skills. Baker concluded that a Cooley promotion would

be detrimental to the efficient operation of the Fire Department. In

support, Baker informed Grimm of several incidents, which included

Cooley’s refusal to participate in diversity training,4 Cooley’s

ongoing refusal to recognize Sowell’s authority over him, and

Cooley’s statement that he did not trust management. 

(d) Cooley’s Performance Review: On November 10, 2004, Baker

presented Cooley with a written performance review, the first in

many years. This review rated Cooley’s performance as

unsatisfactory in five of eleven rating categories and accused him of

having very poor professional judgment and rapport with

management and colleagues. This evaluation was signed by Grimm.

Grimm admitted considering these events when deciding whether to promote

Cooley. Grimm also stated that he believed that Cooley had gradually become

a problem over the preceding few years. Cooley, on the other hand, disputed

many, if not all, of these complaints about his behavior, characterizing them as

an attempt, orchestrated by Grimm, to deprive him of the promotion because of
No. 07-40261

6

his role in the union negotiations. Cooley provided a number of affidavits from

various Captains and coworkers, including his immediate supervisor, Hart,

which support his argument that he was not a behavioral problem, was not a

negative influence, and was targeted because of his union activities.

On November 10, 2004, Grimm officially notified Cooley that he would be

bypassed for promotion. Grimm delivered a letter to Cooley and the Texas City

Firefighters’ and Police Officers’ Civil Service Commission (“the Commission”),

citing his reasons, which he contends were exclusive. It does not mention

Cooley’s union activities and instead states:

As a result of observations of Department senior staff and a

promotional interview, I have concluded that Mr. Cooley should not

be promoted at this time because he lacks leadership skills and he

also projects a negative attitude that has been detrimental to

building a positive working environment. Mr. Cooley has appeared

angry and resentful in the workplace, but has not explained his

reasons for exhibiting these demeanors. Mr. Cooley has also been

deficient in developing professional relationships with his fellow

employees. He has not always maintained professional attitudes at

Departmental activities and he has not always fostered positive

professional attitudes in his subordinates. Various senior staff

members have counseled Mr. Cooley on several occasions that he

needs to work on these issues, but he has not followed their advice.

Cooley appealed to the Commission, but it upheld Grimm’s decision. This

position remained vacant until the City abolished the Assistant Fire Chief

position on April 6, 2005 and demoted Baker back to Captain. 

(4) January 2005 vacancy and promotional bypass of Cooley

On January 3, 2005, Captain Mark O’Neal retired, creating a third

vacancy for Captain. On January 4, 2005, however, Grimm again bypassed

Cooley for promotion, using the same reasons previously articulated for the
No. 07-40261

5

In denying Grimm’s motion for summary judgment, we note that the district court

erred when it stated that a jury could find that “Cooley’s promotion would not have any

significant detrimental effect on the efficiency of the Texas City Fire Department,” because

detrimental effect is part ofthe balancing test under Pickering v. Board of Education, 391 U.S.

563 (1968), performed by the court as a matter of law. See Kinney v. Weaver, 367 F.3d 337,

7

November 10, 2004 bypass. Cooley appealed to the Commission, but it upheld

Grimm’s decision. Instead, Grimm promoted Tumbleson. 

B. Proceedings

On April 3, 2006, following these two promotional bypasses, Cooley filed

the instant 42 U.S.C. § 1983 action against Grimm in his official and individual

capacities, the City, and the Commission, in the 122nd Judicial District of

Galveston County, Texas. Cooley alleges that Grimm violated his rights to

freedom of speech and association under the First Amendment when Grimm

bypassed him for promotion based upon his protected union activities. On

April 13, 2006,the defendants removed this action to federal district court based

on federal question jurisdiction. On January 30, 2007, Grimm moved for

summary judgment, asserting the defense of qualified immunity. Cooley

responded on February 23, 2007. On February 27, 2007, the district court issued

a short order, denying Grimm’s motion. The district court found: 

The substantive dispute in this case is over the facts, but in this

dispute the Court can over [sic] little assistance. Instead, it must

accept Cooley’s evidence as true and draw all reasonable inferences

therefrom in his favor. Under this one-sided test, the Court

concludes that a reasonable Jury, if it believed all evidence

favorable to Cooley, could find that Grimm by-passed Cooley solely

because of his protected union activities and that Cooley’s promotion

would not have any significant detrimental effect on the efficiency

of the Texas City Fire Department. These are the material fact

issues that must be resolved by the Jury and which preclude the

entry of summary judgment.5
No. 07-40261

363 (5th Cir. 2004) (en banc). The district court, not the jury, must perform the Pickering

balancing test, if the jury finds that Cooley was not promoted solely or partly because of his

“union activities.” See, e.g., Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192,

1202–03 (10th Cir. 2007). 

8

Order (Feb. 27, 2007) (internal citations omitted). Grimm filed an interlocutory

appeal of this order.

II. DISCUSSION

At a threshold level, we must address whether we have jurisdiction to

consider Grimm’s interlocutory appeal. “Although a denial of a defendant’s

motion for summary judgment is ordinarily not immediately appealable, the

Supreme Court has held that the denial of a motion for summary judgment

based upon qualified immunity is a collateral order capable of immediate

review.” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc) (citing

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). “Our jurisdiction is significantly

limited, however, for it extends to such appeals only ‘to the extent that [the

denial of summary judgment] turns on an issue of law.’” Id. (quoting Mitchell,

472 U.S. at 530).

“[O]fficials enjoy qualified immunity to the extent that their conduct is

objectively reasonable in light of clearly established law.” Id. 

Whenever the district court denies an official’s motion for summary

judgment predicated upon qualified immunity, the district court can

be thought of as making two distinct determinations, even if only

implicitly. First, the district court decides that a certain course of

conduct would, as a matter of law, be objectively unreasonable in

light of clearly established law. Second, the court decides that a

genuine issue of fact exists regarding whether the defendant(s) did,

in fact, engage in such conduct. According to the Supreme Court, as
No. 07-40261

6 We have noted:

Since we lack jurisdiction to review a denial of summary judgment based on the

district court’s conclusion that fact questions exist regarding whether the

defendants engaged in conduct that would clearly violate established law,

officials may sometimes be required to proceed to trial even though the ultimate

resolution of those factual disputes may show that they are entitled to qualified

immunity from liability.

Kinney, 367 F.3d at 346 n.8.

9

well as our own precedents, we lack jurisdiction to review the

conclusion of the second type on interlocutory appeal.6

Id. Stated differently, “on interlocutory appeal[,] we lack jurisdiction to

challenge the district court’s determination regarding the sufficiency of the

evidence, that is, whether there is enough summary judgment evidence in the

record for a jury to conclude that certain facts are true.” Phillips v. City of

Victoria, No. 06-40629, 2007 WL 2228340, at *1 (5th Cir. Aug. 2, 2007) (per

curiam) (unpublished). 

“We do, however, have jurisdiction to review the first type of

determination, the purely legal question whether a given course of conduct

would be objectively unreasonable in light of clearly established law.” Kinney,

367 F.3d at 347. Given this rule, a defendant official may only “claim on appeal

that all of the conduct which the District Court deemed sufficiently supported

for purposes of summary judgment met the . . . standard of ‘objective legal

reasonableness.’” Behrens v. Pelletier, 516 U.S. 299, 312–13 (1996). “That is, we

have jurisdiction only to decide whether the district court erred in concluding as

a matter of law that officials are not entitled to qualified immunity on a given

set of facts.” Kinney, 367 F.3d at 347. “[W]e can review the materiality of any

factual disputes, but not their genuineness.” Wagner v. Bay City, 227 F.3d 316,
No. 07-40261

7 After examining the summary judgment evidence, the district court found that

genuine issues of fact existed and stated specifically that a reasonable jury “could find that

Grimm by-passed Cooley solely because of his protected union activities . . . .” Order (Feb. 27,

2007) (emphasis added). Although the district court did not further discuss the facts behind

its decision, we summarize the pertinent summary judgment evidence that the district court

had before it related to causation. 

Grimm, in his motion for summary judgment, expressly asserted that his decision to

bypass Cooley was not based on Cooley’s union membership or advocacy in union negotiations.

R. at 381, 385, 387. Rather, Grimm argued that he refused to promote Cooley because of

Cooley’s negative and unprofessional attitude, insubordinate behavior toward management,

lack of leadership skills, and lack of cooperation with management initiatives. R. at 381.

Grimm stated that he based this decision on information provided by Baker, which identified

Cooley’s refusal to participate in diversity training, ongoing refusal to recognize Sowell’s

authority, and statements to others that he was distrustful of management as reasons for a

promotional bypass. R. at 383–84.

In response, Cooley’s summary judgment evidence directly contradicted Grimm’s claims

that he did not consider Cooley’s union activities in bypassing him and that Cooley was

negative and disruptive in the workplace. First, Cooley noted that in June 2004, before union

negotiations began, Grimm actually offered him a promotion to Captain, which he had to

decline for personal reasons. R. at 469. Cooley emphasized that Grimm bypassed him for

promotion a few months later, only after union negotiations became contentious. R. at 472.

Second, Baker testified that Grimm reacted negatively to Cooley’s behavior in the union

negotiations. R. at 472. Third, Cooley’s evidence revealed that Grimm orchestrated Baker’s

review of his candidacy by (1) instructing Baker to interview Cooley, the first of any

promotional candidate; (2) providing questions for the interview; and (3) making Baker twice

revise his memorandum, which recommended that Cooley be bypassed. R. 472–77. Fourth,

Cooley provided evidence that Grimm actually did consider Cooley’s on-duty union activities,

in direct contradiction of Grimm’s earlier statement. R. at 475–77. Fifth, Cooley provides

depositions and affidavits from Baker, Hart, Pandanell, and Captain Allen McWhirter, which

state that they believe Cooley was bypassed because of his role in the union negotiations. R.

at 479–87. Sixth, Cooley provides depositions and affidavits from Baker, Hart, Pandanell,

10

320 (5th Cir. 2000). Any argument not addressed to the first type of

determination may not be considered on interlocutory appeal, and an appeal

relying on an improperly raised argument should be dismissed. See Connelly v.

Tex. Dep’t of Criminal Justice, 484 F.3d 343, 346 (5th Cir. 2007). 

Here, the only proper issue for appeal is whether Grimm’s refusal to

promote Cooley solely because of his advocacy in union negotiations––the given

course of conduct that the district court deemed to be genuinely disputed7––was
No. 07-40261

McWhirter, O’Neal, FireFighterAlex Amieva, andFireFighter James Nunez, whichstate that

Cooley did not exhibit negative behavior in the Fire Department during union negotiations.

R. at 479–88. 

8

It should be noted that even though Grimm denied that he considered Cooley’s

advocacy in union negotiations in bypassing him for promotion, he still sought qualified

immunity based on his weighing of Cooley’s First Amendment rights againstthe government’s

interest in the efficient provision of public services under Pickering, 391 U.S. at 568–75. We,

however, need not consider the Pickering balancing test in disposing of Grimm’s claim of

qualified immunity, because Grimm’s causation claim obviates the need to do so. See Click v.

Copeland, 970 F.2d 106, 112–13 (5th Cir. 1992) (holding that there was no need to consider

the Pickering balancing test when the defendant official argued that his actions were not

11

objectively reasonable in light of clearly established law. Grimm, however, has

not raised this legal issue. Instead, Grimm focuses on the factual issue of

causation, even though the district court already identified a reason for his

failure to promote Cooley, and asks this Court to weigh the sufficiency of the

evidence supporting that conclusion. Grimm maintains that he refused to

promote Cooley because he believed that Cooley’s workplace attitude and

behavior, possibly influenced in part by his union activities, was disruptive and

would lead to an inefficient Fire Department. Grimm also notes that he

bypassed Cooley because of the information that Baker broughtto his attention,

which primarily cited on-duty behavioral problems with Cooley that were not

related to his union activities. The district court, however, clearly determined

that Cooley’s summary judgment evidence was sufficientto create a genuine fact

issue regarding whether Grimm retaliated against Cooley for his role in

negotiating the successor CBA in bypassing him for promotion or refused to

promote Cooley because of his on-duty disruptive attitude and behavior.

Because Grimm simply disputes the sufficiency of Cooley’s causation evidence,

we hold that Grimm has not articulated a legitimate basis for an interlocutory

appeal of the denial of qualified immunity.8 See Kinney, 367 F.3d at 348 (stating
No. 07-40261

motivated by any constitutionally protected activity). 

9 When considering the merits of Cooley’s § 1983 claim, the district court must be

mindful that whether Cooley’s “speech” was entitled to First Amendment protection is a

question of law now best analyzed pursuant to Garcetti v. Ceballos, 547 U.S. 410 (2006) and

Davis v. McKinney, No. 07-20184, 2008 WL 451769 (5th Cir. Feb. 21, 2008). The ultimate

determination will involve evaluating what “union activities” Cooley engaged in and how he

engaged in them, as well as their potential impact on the functioning of the Fire Department.

See, e.g., Curran v. Cousins, 509 F.3d 36, 44–50 (1st Cir. 2007). Further, Grimm remains able

to advance the proposition that he would have declined to promote Cooley “even in the absence

of the protected speech.” Brammer-Hoelter, 492 F.3d at 1203 (internal quotations omitted).

12

that we lack the power in this interlocutory appeal to review the district court’s

decision that a genuine factual dispute exists). Accordingly, we do not have

appellate jurisdiction over the district court’s interlocutory order.9

III. CONCLUSION

For the forgoing reasons, this appeal is DISMISSED for lack of appellate

jurisdiction.