                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-1623
                         ___________________________

                                   Henry E. Lyons

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                        F. Wayne Vaught; Reginald Bassa

                      lllllllllllllllllllll Defendants - Appellants
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                            Submitted: January 14, 2015
                              Filed: March 24, 2015
                                  ____________

Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

       Henry Lyons taught a self-developed course for seven semesters as a part-time
lecturer at the University of Missouri at Kansas City (UMKC). He was not offered
a position for the Spring 2012 semester and his course was dropped from UMKC’s
course catalog. Lyons brought this 42 U.S.C. § 1983 damage action in state court
against three UMKC administrators, alleging unlawful retaliation in violation of his
First Amendment free speech rights as a public employee. Defendants removed and
moved to dismiss, arguing the Petition for Damages failed to allege that they were
personally involved in the retaliatory conduct. Lyons filed an Amended Complaint
and voluntarily dismissed his claim against UMKC Chancellor Leo Morton. The
remaining defendants -- F. Wayne Vaught, Dean of the College of Arts & Sciences,
and Reginald Bassa, Director of the Program for Adult College Education -- again
moved to dismiss, arguing the Amended Complaint failed to state a claim and they
are entitled to qualified immunity. Defendants appeal the denial of this motion.

       We have jurisdiction over the denial of a motion to dismiss based on qualified
immunity, including “whether a particular complaint sufficiently alleges a clearly
established violation of law.” Ashcroft v. Iqbal, 556 U.S. 662, 673 (2009). We
accept as true the facts alleged in Lyons’s Amended Complaint and review de novo
whether the complaint “state[d] a claim to relief that is plausible on its face.” Hager
v. Ark. Dep’t of Health, 735 F.3d 1009, 1013 (8th Cir. 2013) (quotation omitted).
Applying these standards, we reverse.

                                          I.

       The Amended Complaint alleged that Lyons gave a student athlete a grade of
“F” in the Fall 2010 semester. The student invoked UMKC’s grade-appeal process
in January 2011. Lyons met with Bassa and defended his grading. Bassa determined
the student should be allowed to submit a second midterm paper before resolving the
appeal. “Concerned about the legitimacy of the appeals process, as well as the
preferential treatment afforded to this Student Athlete and others,” the Amended
Complaint alleged, Lyons complained to Dean Vaught, who referred the student’s
appeal to the Academic Standards Committee for the College of Letters and Science.
The Committee determined the student should be allowed to write a second paper.
Lyons “challenged the determination” to Dean Vaught, who upheld the Committee’s
ruling. In November 2011, the student submitted a second midterm paper, “a



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committee” appointed to grade the paper gave it a 75% grade, and Vaught instructed
the registrar to change the student’s course grade to D+, a passing grade.

       In late November 2011, the Amended Complaint alleged, Lyons --
accompanied by two “community leaders” and by the former Deputy Chancellor for
Diversity -- met with Chancellor Leo Morton “to express [Lyons’s] concerns about
the preferential academic treatment afforded to student athletes on the UMKC
campus.” Lyons told Morton that preferential grading for athletes was unfair to other
students and was “a growing problem on the UMKC campus” that “could lead to
adverse publicity and sanctions.” Lyons requested that Morton “undertake a
comprehensive investigation into the preferential treatment afforded to student
athletes.” Morton said he was not prepared to take action. After this meeting, “Lyons
also spoke with Bassa and Vaught, and voiced the same concerns he communicated
to Chancellor Morton.” “Both Bassa and Vaught said they would contact Chancellor
Morton to discuss the situation moving forward.” Lyons heard nothing further from
Morton, Bassa, or Vaught regarding his concerns. He received no advance notice that
his course would be eliminated for the Spring 2012 semester.

                                         II.

       Lyons sued Bassa and Vaught for First Amendment retaliation, alleging they
did not recommend Lyons for reappointment as a part-time lecturer in retaliation for
his protected speech concerning preferential treatment for student-athletes. To plead
a prima facie case of First Amendment retaliation, Lyons must allege that (1) he
engaged in activity protected by the First Amendment; (2) the defendants took an
adverse employment action against him; and (3) the protected conduct was a
substantial or motivating factor in the defendants’ decision to take the adverse
employment action. Davison v. City of Minneapolis, 490 F.3d 648, 654-55 (8th Cir.
2007).



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       In Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), the Supreme Court held “that
when public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.” In
Lane v. Franks, 134 S. Ct. 2369, 2379 (2014), the Court in ruling that a college
president was entitled to qualified immunity clarified that “[t]he critical question
under Garcetti is whether the speech at issue is itself ordinarily within the scope of
an employee’s duties, not whether it merely concerns those duties.” Thus, to decide
whether a public employee’s speech is protected by the First Amendment, a court
must first determine whether the employee spoke as a citizen on a matter of public
concern. This is a question of law for the court. See McGee v. Pub. Water Supply,
Dist. 2, 471 F.3d 918, 920 (8th Cir. 2006).1

       Lyons’s initial complaint failed to state a claim because he did not allege that
Morton, Vaught, or Bassa took the adverse action of not reappointing Lyons for the
Spring 2012 semester. The Amended Complaint cured this defect by alleging that his
prior appointments were with “the recommendation and approval” of Vaught and
Bassa, and by dismissing the claim against Chancellor Morton. But the Amended
Complaint, like its predecessor, failed to allege what speech was protected by the
First Amendment (an inexcusable but not fatal pleading error).



      1
        If the court determines the public employee spoke as a citizen on a matter of
public concern, it must then determine “whether the relevant government entity had
an adequate justification for treating the employee differently from any other member
of the general public.” Garcetti, 547 U.S. at 418. This question can rarely, if ever,
be determined on a Rule 12(b)(6) motion to dismiss the public employee’s complaint.
But at the summary judgment stage, if the defendant has presented evidence that the
employee’s speech “adversely affected the efficiency of the department,” the required
“fact-intensive balancing test . . . can rarely be considered ‘clearly established’ for
purposes of the . . . qualified immunity standard.” Bartlett v. Fisher, 972 F.2d 911,
916-17 (8th Cir. 1992).

                                         -4-
         Vaught and Bassa moved to dismiss Lyons’s First Amended Complaint as
failing to state a claim under Garcetti, arguing that “Lyons’s speech was uttered in
response to a student’s appeal of the grade Lyons had assigned,” and therefore
“Lyons cannot ‘plausibly’ establish that his complaints about preferential treatment
of student athletes was not . . . due to his role as a UMKC lecturer.” Alternatively,
defendants argued they are entitled to qualified immunity because “it was not ‘clearly
established’ that Lyons’s speech in response to a student’s grade appeal would be
protected by the Constitution.” In response, Lyons argued that the “only alleged
protected speech at issue in this dispute is Lyons’ speech directed to Chancellor
Morton, two community leaders, and [the] former Deputy Chancellor for Diversity
. . . in late November 2011.” His statements at that meeting regarding preferential
treatment of student athletes dealt with a matter of public concern and were “not made
pursuant to an official job function or duty,” even if related to his employment as a
part-time lecturer.

        In denying the motion to dismiss, the district court carefully reviewed the First
Amended Complaint and the Garcetti standard that precludes First Amendment
protection when public employees make statements pursuant to their official duties.
“Lyons’s statements during the Student Athlete’s grade appeal process were likely
part of his official duties,” the court noted, but his First Amendment retaliation claim
is based “only on his statements to Chancellor Morton.” The Amended Complaint
does not contain enough factual detail to determine if Lyons’s statements to
Chancellor Morton at the meeting attended by community leaders were part of the
student appeal process, “or if the meeting focused solely on the broader public
concern that UMKC’s processes undermined its educational mission for the benefit
of athletes.” Therefore, the court denied the motion to dismiss because it was “unable
at this stage in the litigation to conclude whether Lyons’s claim is barred by Garcetti.”
The court denied qualified immunity because the allegations “plausibly suggest a
meeting among Lyons, Chancellor Morton, and community leaders, which focused
on generalized concerns . . . and was unrelated to Lyons’s duties.”

                                          -5-
       On appeal, defendants argue the district court erred by segregating, for
purposes of its Garcetti analysis, Lyons’s alleged statements to Chancellor Morton
at the November 2011 meeting from his earlier alleged complaints to defendants
about the “preferential academic treatment” afforded the student athlete in the appeals
process. But this misinterprets Lyons’s admittedly ambiguous Amended Complaint.
In paragraphs 18-64, Lyons alleged that preferential treatment was one of his
concerns in the student appeal process, but did not allege that he voiced that concern
to Bassa and Vaught. Thus, Lyons correctly argued to the district court that the only
alleged protected speech came in paragraphs 65-77, which described the meeting with
Chancellor Morton. The district court reviewed those distinct allegations and
concluded (i) the meeting concerned speech about a matter of public concern, and (ii)
the court should not dismiss the Amended Complaint under Garcetti because it could
not determine from this pleading whether Lyons was speaking as a citizen outside the
student appeal process. We agree with this Rule 12(b)(6) analysis.

      However, this conclusion does not resolve the qualified immunity appeal.
Defendants argue they are entitled to qualified immunity because (i) the only claimed
protected speech was made to Chancellor Morton, a former defendant who Lyons
voluntarily dismissed, at a meeting Bassa and Vaught did not attend; and (ii) the
Amended Complaint failed to allege that Bassa and Vaught were aware of the alleged
protected speech or even knew of Lyons’s meeting with Chancellor Morton and the
community leaders. Instead, the Amended Complaint merely alleged, “After the
meeting with Morton, Lyons also spoke with Bassa and Vaught, and voiced the same
concerns.” Thus, Lyons failed to allege plausibly that his only constitutionally
protected speech could have been a substantial or motivating factor in defendants’
alleged adverse employment action.

       After careful review of the Amended Complaint, we agree with this contention.
The third element of a public employee’s First Amendment retaliation claim is proof
of a causal connection between the protected activity and the adverse employment

                                         -6-
action. “It is only intuitive that for protected conduct to be a substantial or motivating
factor in a decision, the decisionmakers must be aware of the protected conduct.”
Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002). Thus, while the
issue of causal connection is usually fact-intensive, many cases have dismissed
retaliation complaints that failed to allege that the defendant taking adverse action
knew of the protected activity. See Gagliardi v. Sullivan, 513 F.3d 301, 308 (1st Cir.
2008); Gorman v. Bail, 947 F. Supp. 2d 509, 525 (E.D. Pa. 2013); Gadling-Cole v.
West Chester Univ., 868 F. Supp. 2d 390, 401 (E.D. Pa. 2012); Amos v. D.C., 589 F.
Supp. 2d 48, 56 (D.D.C. 2008); accord Rohrbough v. Univ. of Colo. Hosp. Auth., 596
F.3d 741, 750 (10th Cir. 2010) (affirming summary judgment on this ground); Gorum
v. Sessoms, 561 F.3d 179, 188 (3d Cir. 2009) (same); Wilson v. Northcutt, 441 F.3d
586, 592 (8th Cir. 2006) (granting qualified immunity to a defendant who had no
knowledge of the plaintiff’s protected activity). Lyons does not allege that Vaught
or Bassa knew of Lyons’s speech to Morton when they declined to recommend him
for reappointment, only that he had “voiced the same concerns” to Vaught and Bassa
after the meeting with Morton, an allegation plausibly related to the student appeal
process, not to any unrelated speech as a citizen.

       In these circumstances, we must assume at the Rule 12 stage that Vaught and
Bassa failed to recommend or approve Lyons’s reappointment because of his speech
during the student appeal process. But this was unprotected speech, and therefore it
was not clearly established that failure to reappoint for this reason was wrongful
retaliation because Lyons also made allegedly unrelated, protected speech at a
meeting Vaught and Bassa did not attend, when it is not alleged that they were
apprised of that speech and its nature and purpose. Accordingly, Vaught and Bassa
are entitled to qualified immunity from Lyons’s First Amendment retaliation claim.

      The Order of the district court dated March 3, 2014, is reversed and the case
is remanded for further proceedings not inconsistent with this opinion.
                       ______________________________

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