                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-2847
                                   ___________

Salvadora Katosang,                    *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the Western
                                       * District of Missouri.
Angela Wasson-Hunt; James Wilson; *
Terry Brady; Karl Zobrist;             * [UNPUBLISHED]
Kay Barnes, Mayor; Pearl Fain,         *
                                       *
            Defendants - Appellants. *
                                  ___________

                             Submitted: April 14, 2010
                                Filed: August 26, 2010
                                 ___________

Before WOLLMAN, MURPHY, and SHEPHERD, Circuit Judges.
                         ___________

PER CURIAM.

      Following her termination as a probationary analyst at the Kansas City, Kansas
Police Department’s Office of Citizen Complaints (OCC), Salvadora Katosang
brought this lawsuit under 42 U.S.C. § 1983. Katosang alleges that Pearl Fain, her
former supervisor and the Director of the OCC, and the members of the Board of
Police Commissioners (collectively, “defendants”) retaliated against Katosang for
exercising her free speech rights under the First Amendment. The defendants moved
for summary judgment based on qualified immunity.1 The district court denied the
motion. The defendants appeal the denial of qualified immunity. We remand the case
so that the district court may properly analyze the defendants’ motion for summary
judgment based on qualified immunity.

                                            I.

       In construing the facts underlying this interlocutory appeal of the district court’s
denial of qualified immunity, we must view “the summary judgment facts as described
by the district court.” Nelson v. Shuffman, 603 F.3d 439, 446 (8th Cir. 2010) (quoting
Beck v. Wilson, 377 F.3d 884, 889 (8th Cir. 2004)). The district court stated the facts,
in their entirety, as follows:

      The record, construed in the light most favorable to Plaintiff, reveals the
      following facts. Following a six-month probationary period as a newly
      hired Analyst for the OCC, Plaintiff met in private with Fain to review
      her performance as a probationary employee. Plaintiff’s evaluation was
      positive. After the review was completed, the evaluation form had been
      signed by Plaintiff and Fain, and Fain was preparing to take it to the
      Personnel Department, Plaintiff told Fain that she had some concerns she
      wanted to discuss. Plaintiff then told Fain that she had concerns about
      the way Fain was recording and awarding compensatory time, sick time,
      and vacation time; specifically, that the leave policy was being
      administered in an unfair and discriminatory way. Following this


      1
       The defendants’ first summary judgment motion, seeking dismissal of
Katosang’s claim on the merits, is not the subject of this interlocutory appeal, and we
only briefly address it as relevant here. The Honorable Howard F. Sachs, United
States District Judge for the Western District of Missouri, denied the first summary
judgment motion, concluding that there were disputed facts and that a jury could find
that Katosang was terminated in retaliation for exercising her First Amendment rights.
Following Judge Sachs’s denial of the first summary judgment motion, this case was
transferred to another district judge.

                                           -2-
      discussion, Fain recommended that Plaintiff’s employment at the OCC
      be suspended and then terminated.

Katosang v. Wasson-Hunt, No. 06-0887-CV-W-ODS, 2009 WL 2069973, at *1 (W.D.
Mo. July 14, 2009) (unpublished).

       Following her termination, Katosang filed a complaint against the defendants
in the Circuit Court of Jackson County, Missouri, alleging that she was terminated for
exercising her First Amendment right to freedom of speech. Katosang alleged that she
“informed defendant Fain that [Katosang] believed Fain had exercised discriminatory
practices in the [OCC], mistreated minorities in the office, and arbitrarily awarded
sick, vacation and compensatory time to employees and [had] not followed department
policies regarding the same.” (Compl. ¶ 15.) Because Katosang’s claims were made
pursuant to section 1983, the defendants removed her complaint to federal court. See
Ali v. Ramsdell, 423 F.3d 810, 812 (8th Cir. 2005) (“[F]ederal § 1983 claims [are]
within the district court’s original jurisdiction.” (citing 28 U.S.C. § 1441(b)).

      The defendants sought summary judgment on the basis of qualified immunity.
The district court denied the motion, stating:

      In denying Defendants’ first Motion for Summary Judgment, Judge
      Sachs ruled there were disputed facts on the issues of whether Plaintiff’s
      communication was motivated by her personal interests rather than by
      public interests, and on whether Plaintiff’s statements were part of the
      duties of her job. He also ruled there was a factual dispute regarding
      whether Plaintiff was terminated because of the content of her statements
      or because of the manner in which she made them. The same facts that
      are in dispute on the issue of whether there was a constitutional violation
      are necessary to resolve whether the right violated was clearly
      established. Defendants may be entitled to qualified immunity, but the
      record at this time does not allow the Court to resolve the issue. After
      a jury makes the necessary factual findings, the Court will be in a
      position to rule on these legal issues. Accordingly, Defendants’ second

                                         -3-
      Motion for Summary Judgment on the limited issue of qualified
      immunity must be denied.

Katosang, 2009 WL 2069973, at *2. The defendants bring this interlocutory appeal.

                                          II.

       Although we generally lack jurisdiction to review the denial of summary
judgment, we possess jurisdiction “to consider an interlocutory appeal from the denial
of summary judgment based on qualified immunity.” Nelson, 603 F.3d at 446. In this
interlocutory appeal, we review de novo the denial of summary judgment based on a
claim of qualified immunity. Id.

       Whether a government official is entitled to qualified immunity involves two
inquiries: (1) “whether the facts, viewed in the light most favorable to the plaintiff,
establish a violation of a constitutional right,” and (2) “whether the relevant
constitutional right was clearly established at the time of the alleged violation.” Id.
The court “retain[s] discretion to decide which of the two questions to answer first.”
Heartland Acad. Cmty. Church v. Waddle, 595 F.3d 798, 805 (8th Cir. 2010); see
Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).

       Here, the district court denied qualified immunity on the basis of the existence
of disputed facts, declining to undertake either of the aforementioned qualified
immunity inquiries. In general, summary judgment is not appropriate where there are
genuine issues of material fact; however, a qualified immunity case is unique. See
Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 671 (8th Cir. 2007). “In a
qualified immunity case, . . . ‘the court should [not] deny summary judgment any time
a material issue of fact remains on the [constitutional violation] claim [because to do
so] could undermine the goal of qualified immunity.’” Id. (quoting O’Neil v. City of
Iowa City, Iowa, 496 F.3d 915, 917 (8th Cir. 2007) (second and third alterations in
original)); see Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“[E]ntitlement [to

                                         -4-
qualified immunity] is an immunity from suit rather than a mere defense to liability;
and . . . it is effectively lost if a case is erroneously permitted to go to trial.”); O’Neil,
496 F.3d at 917 (“Both the Supreme Court and this circuit ‘repeatedly have stressed
the importance of resolving immunity questions at the earliest possible stage in
litigation.’” (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on
other grounds by Pearson, 129 S. Ct. at 818)). Instead,

       the court must take a careful look at the record, determine which facts
       are genuinely disputed, and then view those facts in a light most
       favorable to the non-moving party as long as those facts are not so
       “blatantly contradicted by the record . . . that no reasonable jury could
       believe [them].”

O’Neil, 496 F.3d at 917 (quoting Scott v. Harris, 550 U.S. 372, 378, 380 (2007)).
“[T]his usually means adopting . . . the plaintiff’s version of the facts.” Scott, 550
U.S. at 378. Here, the district court did not follow this dictate, and its reasoning for
denying qualified immunity—the existence of fact issues—is contrary to qualified-
immunity case law. See Saucier, 533 U.S. at 201; Mitchell, 472 U.S. at 526;
Brockinton, 503 F.3d at 671; O’Neil, 496 F.3d at 917.

       Furthermore, we have previously remanded a qualified immunity case on the
basis that “the [district] court’s analysis was admittedly ‘abbreviated,’ ‘terse,’ and ‘not
laid out step-by-step,’” in order for the court to conduct “a thorough determination of
[the] claim of qualified immunity” to which government officials “are entitled” under
“the case law.” O’Neil, 496 F.3d at 918. Specifically, “there [was] absolutely no
discussion on . . . whether reasonable officials in the [defendants’] positions would
have known that their actions violated [the plaintiff’s] constitutional rights.” Id.
O’Neil concluded, “[W]e can neither affirm nor reverse the denial of qualified
immunity based on the cursory commentary advanced by the district court in its denial
order.” Id. The district court’s analysis in this case is more truncated than that of the
district court in O’Neil.


                                             -5-
       We pass no judgment on whether the defendants are entitled to qualified
immunity as we can neither affirm nor deny qualified immunity where the district
court failed to undertake the necessary analysis, i.e. applying the qualified immunity
inquiry to the facts in the light most favorable to Katosang. See O’Neil, 496 F.3d at
918 (“We remand the case to the district court for a more detailed consideration and
explanation of the validity, or not, of the defendants’ claim to qualified immunity.”);
see also Empire Dist. Elec. Co. v. Rupert, 199 F.2d 941, 945 (8th Cir. 1952) (“[T]his
court is an appellate court sitting to review alleged errors of law, and not to try the
action de novo.” (quotation omitted)). We decline to conduct this analysis in the first
instance. See O’Neil, 496 F.3d at 917; see also Rupert, 199 F.2d at 945. Accordingly,
we remand the case to the district court for consideration of the validity of the
defendants’ claim to qualified immunity, viewing, where necessary, the facts, and all
reasonable inferences thereto, in favor of Katosang.2

                                         III.

      For the foregoing reasons, we remand this case to the district court for further
analysis of the qualified immunity issue consistent with this opinion.
                        ______________________________


      2
        Katosang sued (1) Fain in her individual and official capacities and (2) the
Board members in their official capacities. (Pet. ¶ 2-7.) We note that qualified
immunity “only extends to claims against government employees sued in their
individual capacities.” VanHorn v. Oelschlager, 502 F.3d 775, 778 (8th Cir. 2007);
see Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“Qualified
immunity is not a defense available to governmental entities, but only to government
employees sued in their individual capacity.”); see also Kentucky v. Graham, 473 U.S.
159, 167 (1985) (“The only immunities that can be claimed in an official-capacity
action are forms of sovereign immunity that the entity, qua entity, may possess, such
as the Eleventh Amendment.”). In denying qualified immunity, the district court did
not consider this limitation on the doctrine. Because we are remanding the issue of
qualified immunity to the district court, we leave this matter to the district court.

                                         -6-
