                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 12, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 02-11343
                         Summary Calendar



                           SURESH DUTTA,

                                    Plaintiff-Appellee,

                              versus

                        DAVID A. PISTENMAA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:01-CV-2053-M
                       --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     David A. Pistenmaa, M.D., appeals the district court’s denial

in part of his summary judgment motion asserting a qualified

immunity defense to the First Amendment retaliation claims of

Suresh Dutta, M.D.    The summary judgment evidence revealed two

versions of the relevant facts.   Dr. Dutta’s version was that his

employment contract was not renewed for his assistant professor

position because he criticized the hospitals’ disparate treatment

of insured patients who could pay for services and uninsured ones


     *
       Pursuant to 5TH CIR. R. 47.5, the 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this opinion should not be published and is not precedent except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.
                                  No. 02-11343
                                       -2-

who were indigent. Dr. Pistenmaa’s version was that the nonrenewal

of Dr. Dutta’s contract was based on Dr. Dutta’s poor work habits,

his hostile attitude, and his condescending and disrespectful

treatment of staff and faculty members.

      To establish a 42 U.S.C. § 1983 cause of action for a First

Amendment claim of retaliation, an employee must show: (1) that he

suffered an adverse employment action, (2) as a result of speech

involving a matter of public concern, (3) that his 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.                Foley v.

Univ. of Houston Sys., 355 F.3d 333, 340 (5th Cir. 2003).                  The

district court denied summary judgment on the basis of, inter alia,

the   fourth   factor,    i.e.,    there   were   genuine   issues   of   fact

regarding causation.      Because the district court’s decision falls

into a non-appealable category, i.e., a genuine issue of fact

exists regarding whether the defendant engaged in conduct that

violated a clearly established constitutional right, this court

lacks jurisdiction to hear this appeal.           See Kinney v. Weaver, 367

F.3d 337, 346 (5th Cir. 2004)(en banc).

      DISMISSED FOR LACK OF JURISDICTION.
