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

Education.

2 In this interlocutory appeal, the Appellants request reversal

of a district court decision rejecting th eir 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 Education 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 Victoria

(“UHV”) in 1989 as an ass istant professor in the Education

Division. In 1993, he was appointed Chair of the Division. In

1994, after a vote of t he 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 down2 Apparently no charge of discrimination was filed in 1998.

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

3 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

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 s ix 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. 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

unfairl y. She blames Dr. Prince and her faction for causing her

own removal as Chair of the Division in August 1996. In July 1999,4 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 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 Defen dants 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 aforementione d 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 di stress under Texas common law. All

Defendants moved for summary judgment. The district court granted

the Defendants’ motions for s ummary judgment with respect to

Dr.Hutto’s Titl e 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.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 Foley’s claim of § 1981 retaliation against Dr. Prince and Dr.

Carlson 5 and Dr. Hutto ’s claims of § 1981 retaliation and § 1983

deprivation of First Amendment rights against all fi ve 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 fo r summary judgment

based on qualified immunity, although interlocutory 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.3 d 528, 531 (5th Cir.

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

o f a genuine issue of material fact precluded summary judgment on

the basis of qualified immunity with respec t 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 tho se 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).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 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 add r essing the claim of a public official to qualified

immun ity, we engage in a two-step analysis. First, we must

determine whether the plaintiff has made a sufficient showing that

th e official violated a clearly established right. If the answer

is in the affirmative, we then ask whether the official’s actions

were objective ly 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 officials 6 under § 1981 are

subject to the defense of qualified i mmunity, O den 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 are7

entitled to qualified immunity when “their conduct does not violate

clearly est ablished statutory or constitutional 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 official violated

the pl aintiff’s clearly established right. S iegert, 500 U.S. at

233-34.

B. SECTION 1981 RETALIATION CLAIMS

The Appellants contend that th ey are entitled to qualified

immunity with respect to the retaliation claims asserted by both Dr.

Fo ley 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 retali a tion

were committed and whether reasonable publ ic 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

retal i ation 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. G off8

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. 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 de cision 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 whic h impairs the right to enforce contract obligations

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

elimin a ted § 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).

Dissa t isfied 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,9

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 confr o nted 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. D ouglas v. DynMcDermott Petr o leum 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. 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 d istrict court decision

holding a retaliation claim to be actionable under § 1981(b). Thomas

v. Exxon, U.S.A., 9 43 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. W e 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 sin ce 1994 an

objectively reasonable public official should have been aware of an7 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.

10 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 prote c ted 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. With8 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 rec overy

(Plaintiffs' Original Complaint, para. 12). Upon remand, the

district court could consider granting leave to amend the pleadings

to clarify the rela tionship between sections 1981 and 1983 in

connection with Foley's retaliation claim.

11 reference to causal connection, the district court found genuine

issues of fact with respect to th e 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”. O rder Regarding Motion

for Summary Judgment, pp. 3,17. An objectively reasonable public

official in the years 1997 th rough 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 fac t issues, they are not protected by qualified

immunity. 8

Dr. Hutto's retaliation claim does not f are as well. The12

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 ac tion 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 Div ision 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 court9 The Appellees argue that the Supreme Court has substituted a

much broader “tangible employm ent 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.

13 erred in rejecting the defense of q u alified 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 su f fered 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. H arris v. Victoria Indep. Sch. Dist., 1 68 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 pub lic concern does not give rise to a cause of

action under § 1983. C onnick v. Myers, 4 61 U.S. 138, 147 (1983);

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

In connection with the § 1983 First Amendment claim as s erted

by Dr. Hutto, the threshold questio n is whether she can show that

she was deprived of a clearly established right. We find that she14

has not crossed that threshold.

Retaliation by an employ er for an employee’s speech is

actionable under § 1983 only if the speech addressed a matter of

public con c ern. 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

predominantly private, that is, if the individual spoke primarily

as an employee rather th a n 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).

N either in the court below nor in this Court has Dr. Hut t o

identified the precise speech which she claims to have addressed a

matter of public concern and to have triggered retaliation. The

distri ct court acknowledged that “the basis for 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 argued

only that she “engaged in prot ected speech by utilizing internal

grievance procedures and fil ing charges with the Equal Employment

Opportunity Commission”. Plaintiffs' Response to Defendants' Motion

for Summary Judgment, page 43. In its order denying summary10 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 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

discrimi n ation...”; 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.” O rder

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. A ppellees' Brief, p ages 27-29. Still lacking, however,

is the precise identification of the speech as to w hich First

Amendment protection is claimed, which would perm it consideration

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

Co nnick, 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 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. 10of 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 Even if Dr. Hutto were able to cite a specific example of

protected speech, she still could not overcome the defe nse of

qualified immuni ty because, as noted s upra

, 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 qua lified immunity with respect to Dr.

Hutto's § 1983 First Amendment claim.

V. CONCLUSION

The district court’s denial of summary judgment as to D r

.

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.