## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 00-31057

Summary Calendar

_______________



### B RENDA 

### M EEKINS



### ,

Plaintiff-Appellee,

VERSUS



### R OBERT 

### P. T HOMPSON



### , D IRECTOR

, F AMILY I NDEPENDENCE W ORK P ROGRAM ;



### L AURA 

### P EASE



### , D IRECTOR

, F AMILY I NDEPENDENCE W ORK P ROGRAM ;



### L AURA 

### B ECK



### , A SSISTANT D IRECTOR

, F AMILY I NDEPENDENCE W ORK P ROGRAM

,



### Defendants-Appellants.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(98-CV-2047-J)

_________________________ April 4, 2001

Before SMITH, BENAVIDES,

and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge: * Brenda Meekins sued , among others,

* Pursuant to 5 TH C IR

. R. 47.5, the cou rt has

(continued...) * (...continued)

determined that this opinion should not be

p ublished and is not precedent except under th e

limite d circumstances set forth in 5 T H C IR

. R.

47.5.4.2

Robert P. Thompson, Laura Pease, and Laura

Beck in their individual and official capacities

under 42 U.S.C. §§ 1981, 1983, and 1985 for

alleged civil rights violations. Asserting qualified immunit

y as a defense, those three

defendants appeal the denial of their motion to

dismiss for failure to state a clai m. Because

the district court correctly found Meekins’s

allegations sufficient to survive the motion to

di smiss, we dismiss the appeal for want of

jurisdiction.

I.

Meekins was employed as a Family Security

Pro gram Specialist II in the Family

Independence Work Program (“FIND”) of the

Louisiana Department of Social Services. Her

employment w as terminated, so she sued,

complaining that her terminati on was retaliatory, in violation of the First Amendment.

Meekins’s original complaint sough t injunctive and monetary relief, nam ing appellants

and other o fficials in their official capacitie s only. The defendants, claiming qualified

i mmunit y, filed a motion seeking eit her

dismissal or j udgment on the pleadings, or

alternatively, a more definite statement of the

claims. In response, and pursuant to S chultea

v. Wood

, 47 F.3d 1427 (5th Cir. 1995) (en

banc), the d ist rict court ordered Meekins to

submit a reply under F ED

. R. C IV

. P. 7(a)

addressing qualified immunit y. 1 The court found Meekins’s complaint, augmented by her

rule 7(a) reply, sufficient to assert a cause of

action under §§ 1981 and 1983 and denied the

motion to dismiss.

Meekins then filed a motion to amend her

complaint to assert claims against defendants

in their individual capacities, which a magistrate denied, whereupon Meekins filed a

separate action in t he district court, asserting

the indi vidual capacity claims. The court

consolidated the actions and dismiss ed the

second action without prejudice.

Before consolidation, the defendants

perfected an interlocutory appeal to this court;

we dismissed the monetary cl aims on the

ground of sovere ign immunity, leaving intact

the claims for injunctive relief. M eekins v.

Foster

, No. 99-30583, at 6-7 (5th Cir. April 3,

2000) (unpublished). We declined, however,

to rule on the individual capacity cla ims, because they had not been consolidated with the

original action un t il after the defendants had

filed their notice of appeal. Id. at 6.

O n remand and after consolidation,

defendants moved for dismissal of the

individual capacity claims, and the court

dismissed t he claims against all defendants

except appellants, with res pect to whom the

1 Schulte a established the use of a rule 7(a)

repl y to resolve the inherent conflict between the

Federal Rules’ notice pleading procedures and the

substantive right of

qua lified immunity, which

requires t hat a plaintiff allege with particularity

those facts necessary to overcome a qualified immunity defense:

(continued...) 1 (...continued)

Wh en a public official pleads the affirmative defense of qualified i m munity in

his answer, the district court may, on the

offi c ial’s motion or on its own, require the

plaintiff to r eply to that defense in detail.

By definition, the reply m ust be tailored to

the assertion of qualified immunit y and

fairly engage its allegations.

Shultea , 47 F.3d at 1433.3

court denied the motion to dismiss, reasoning

that

after a fair reading of the Complaint as a

whole and plaintif

f’s S chultea reply,

plaint iff has sufficiently alleged facts to

state a claim for vio lat ion of her civil

rights. She alleges that she was fired because she spoke out about welfar e and

welfare reform, and was criti c al of the

way the state handled welfare reform.

II.

Although the denial of a motion to dismiss

is normally not appealable, we review de novo

the denial of

a motion to dismiss on qualified

immunit y grounds; such a denial is considered

an appealable collater al order when rendered

on an issue of law. S hipp v. McMahon , 234

F.3d 907, 910 (5th Ci r. 2000), p etition for

cert. filed (U.S. Mar 5, 2001) (No. 00-1392).

We do not have jurisdiction in this posture to

review the evidentiary sufficiency of the allegations, however. S teadman v. Tex. Rangers

, 179 F.3d 360, 365 (5th Cir. 1999) (stating that

we have jurisdiction to review only “legal” issues under the collateral

order doctri ne and

noting that “[a]n order is not ‘legal’ where it

resolves a

fact-related dispute of ‘evidence

sufficiency.’”), cert. den ied , 528 U.S. 1115

(2000).

A motion to dismiss under rule 12(b)(6) “is

viewed with disfavor and is rarely granted.”

Shipp

, 234 F.3d at 910 (quoting Kaiser

Aluminum & Chem. Sales v. Avondale

Shipyards

, 677 F.2d 1045, 1050 (5th Cir.

1 986)). Surviving a motion to dismiss is

generally not a high hurdle for a plaint iff: We

liberally construe the complaint in favor of the

plaintiff, and we take as true all facts in the

complaint; a motion to dismiss should not be

g rant ed “unless it appears beyond doubt that the plaint iff can prove no set of facts in

support of his claim which would entitle him to

relief.” Anderson v. Pasadena Indep. Sch.

Dist.

, 184 F.3d 439, 443 (5th Cir. 1999)

( quoting B lackburn v. City of Marshall

, 42

F.3d 925, 931 (5th Cir. 1995)).

With respect to claims against which

qualified immunit

y can be a defense, however,

we require a heightened standard of pleading,

whereby the plainti ff must allege specific

conduc t giving rise to a constitutional

violation. Id. Such alleg at ion “must be

pleaded with factual detai l and particularity,

not mere conclusionary allegations.” J ackson

v. Widnall

, 99 F.3d 710, 715-16 (5th Cir.

1996) (qu o tati on marks omitted). Specifically,

“the plaint iff must identify defen dants who

were either personally

involved in the

cons t it utional violation or whose acts are

causally connected to the constitutio nal

violation alleged.” W

oods v. Edwards

, 51

F.3d 577, 583 (5th Cir. 1995). In addition, the

p laint iff must allege a violation of a “clearl y

established constitutional right.” S hipp

, 234

F.3d at 911. 2

A plaint iff who states a First Amendment

claim sufficiently alleges the violation of a

clearly established right. K ennedy

, 224 F.3d at

377. The plaint iff must establish that the

asserted protected speech addressed a matter

of pub lic co ncern; if he does so, “the court

2 If a pl aintiff alleges facts sufficient to show

that the defendants violated a clearly established

right, the cou r t must inquire “whether the

defendants’ conduct was objectively reasonable in

light of ‘clearly established’ law at the time of the

alleged violation.” K

ennedy v. Tangipahoa Parish

Library Bd. of Control , 224 F.3d 359, 377 (5th

Cir. 2000). Appellants, however, contend only that

Meekins has failed to show that the y violated a

clearly established right, so the second stage of the

inquiry is not before us.4

must strike ‘a balance between the interests of

the [employee], as a citizen, in commenting

upon matters of p ublic concern [against] the

interest of the State, as an employer, in

promoting the efficiency of the public services

it performs through its employees.’” C lick v. Copeland

, 970 F.2d 106, 111 (5th Cir. 1992)

(quo t ing P ickering v. Bd. of Educ.

, 391 U.S.

563, 568 (1968)).

Appellants contend that they fired Meekins

for insubordination and inappropriate contact

with Southern University of N e w Orleans

(“SUNO”) and other potential contractors under the FIND program. Meekins disagrees

wi t h the characterization of her contact with

S UNO, contending that her relationship with

it constituted protected activity under the First

Amendment, because she participated “in public speech on issues of welfare reform and

welfare related matte rs at [SUNO] . . . .”

Moreover, Meekins contends in her complaint,

the true reason fo r her dismissal was her

refusal to participate in 

### SS and, more

importantly, disclosure of



### SS the misconduct of

Appellants, the managers of the FIND

program: “Thompson, Pease, and Beck have

conspired to unlawfully terminated [ sic ] plaintiff from her position because she exercise [ sic ]

rights protected by the First Amendment to the

United States Constitut io n and because she

has been a whistleblower and has complained

of illegal practices of the Department’s Office

of Family Support Orleans Region.”

Appellants argue that Meekins’s claims alle g e facts insufficient to overcome the

qualified immunit

y defense. Specifically, they

argue, Meekins has shown neither that she engage d in a protected activity nor that her interest in pursuing that activity outweighs the

govern m ent’s interest, as required by Pickering

. Meekins, however, has alleged, i nter alia

, that she was f ired in retaliation for

revealing the misconduct of the o fficials in the

FIND prog ram. 3 In her rule 7(a) reply, she

se t s forth many specific allegations of

misconduct and alleged attem pts to report that

misconduct to higher officials, to buttress her

claim of whistleblower retaliation.

A public employee has “a clearly

established right to speak on matters of public

co ncern, on matters of public safety, and on

matters of official misconduct.” K ennedy

, 224

F.3d at 376 (citations omitted) (compiling

cases). Likewise, allegations of corruption, if

tru e, “are matters of public concern and

outweigh the government’s interest in efficiency.” B reaux v. City of Garland

, 205 F.3d 150,

157 n.10 (5th Cir.), cert. denied, 121 S. Ct. 52

(2000).

Although Breaux

focused on the objective

truth of the plaint iff

’s allegations in finding

that they were matters of public concern, that

case was decided a ft er a jury trial. In the

context of a motion to dismiss, we must accept

as true Meekins’s allegations of misconduct.

Thus, her claims no t only allege speech on a

matter of public concern; they also, at least for

purposes of the motion to dismiss, establish by

their nature that Meekins’s interest outweighs

the government’s. Meekins also has alleged

t hat all three appellants were intimately

involved both in the purported misconduct and

in her allegedly improper termination, meeting

the requirement that the named defendants be

somehow causally connected to t he alleged

constitutional violation.

3 We need not address whether Meekins’s other

alleged protected spe ech SS her discussions of

welfare reform at SUNO SS relate d to a matter of

public concern, because we find that her allegations

of whistleblower retaliation are sufficient.5

Meekins therefore alleges sufficient facts to

survive the motion to dismiss. On remand, the

district co urt may find that Meekins’s allegations of misconduct and retaliation have no evidentiary support; we have no jurisdiction,

however, to address that issue now. We may

reverse the order only if Meekins did not

allege facts that, if true, would defeat a qualified immunity defense. She has done so,

and we therefore are without juris d iction to

entertain this appeal.

DISMISSED.