199 F.3d 295 (6th Cir. 1999)
Kevin L. Shehee, Plaintiff-Appellee,v.Mark H. Luttrell, Individually; Jonathan C. Miner,  Individually; Greg Fleming, Individually; Kenny Morgan,  Individually; Margaret C. Hambrick, Individually; Edward  L. Crosley, Individually; Mark Henry, Individually;  Michael Robertson, Individually, Defendants-Appellants.
No. 98-5614
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Submitted: August 4, 1999Decided and Filed: October 1, 1999*

[Copyrighted Material Omitted]
Appeal from the United States District Court for the Eastern District of Kentucky at London, No. 96-00173--Jennifer B. Coffman, District Judge.
Barbara L. Herwig, Peter R. Maier, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, APPELLATE  STAFF, Washington, D.C., for Appellants.
Kevin L. Shehee, Ashland, Kentucky, pro se.
Before: JONES, BATCHELDER, and COLE, Circuit Judges.
OPINION
R. GUY COLE, JR., Circuit Judge.


1
Defendants-Appellants are prison employees or officials of the Federal Correctional  Institute at Manchester, Kentucky ("FCI-Manchester"), or officials employed by the Bureau of Prisons ("BOP").  Plaintiff-Appellee Kevin L. Shehee filed a Bivens suit against the defendants, alleging various violations of his  constitutional rights. Defendants now appeal the district court's denial of their motion to dismiss and/or summary judgment  based on qualified immunity. For the reasons that follow, we REVERSE the judgment of the district court and REMAND for further proceedings in accordance with this opinion.

I.

2
Shehee, an inmate at FCI-Manchester, was assigned to work in the prison commissary, a coveted assignment based on  its higher pay and favorable working conditions. Defendant Greg Fleming was employed at FCI-Manchester as the  Commissary Supervisor and Defendant Kenny Morgan was employed as the Warehouse Foreman. Both Fleming and  Morgan were supervised by Defendant Michael Robertson.


3
According to Shehee, Fleming expected kickbacks in the form of soft drinks and stamps from the commissary in  exchange for allowing inmates to continue to work there. Shehee claimed that he refused to cooperate in the kickback  scheme and this refusal rendered him vulnerable to accusations of wrongdoing by Fleming which, in turn, jeopardized his  job in the commissary.


4
In June 1995, Shehee and six other inmate commissary workers were questioned by Fleming and Morgan regarding the  presence of over-ripe fruit found in a bag in a cooler. Fleming and Morgan accused the inmates of attempting to make  alcohol from the fruit; however, the inmates claimed that it was standard practice to put damaged fruit in a bag for disposal  at a later time. Thereafter, three of the seven inmates (including Shehee) were placed in isolation/administrative detention  pending the investigation for attempted manufacture of alcohol. No disciplinary charges were ever filed against any of the  inmates arising from these allegations.


5
Shehee was released from administrative detention on June 19, 1995 and returned to work in the commissary. Shehee  then filed informal grievance complaints against Fleming and Morgan,claiming that the alcohol allegation was simply an  excuse to harass Shehee in order to have him placed in administrative detention. Shehee contended that Fleming and  Morgan wanted to harass him because he would not cooperate in their kickback scheme. Fleming and Morgan's supervisor,  Robertson, was required to respond to Shehee's grievances to the unit team counselor.


6
On June 24, 1995, after Shehee filed his grievances, Robertson fired him from his commissary job. Robertson allegedly  told Shehee that he could not work for him because he had filed grievances against Robertson's supervisees. After Shehee  was fired, the other six inmates involved in the alleged alcohol scheme were also fired from commissary duties.


7
Thereafter, Shehee filed a "request for administrative remedy," claiming that Robertson, Fleming and Morgan retaliated  against him. Assistant Warden Jonathan C. Miner responded to Shehee's request by stating that an inmate may be removed  from commissary duties at the discretion of the supervisor. Miner did not address Shehee's retaliation claims. Shehee then  appealed Miner's decision to Margaret C. Hambrick, the regional director. Defendant Mark Henry responded on behalf of  Hambrick, again reiterating that Shehee was fired for cause and ignoring Shehee's retaliation claims. Finally, Shehee  appealed to BOP Administrator Edward L. Crosley. Crosley determined that Shehee's dismissal was appropriate under  BOP policies but, again, failed to address Shehee's retaliation claims.


8
Shehee also complained to Congressman Tony B. Hall. Congressman Hall inquired about Shehee's complaints to  then-warden Mark H. Luttrell. Luttrell responded to Congressman Hall in a letter stating that Shehee was fired for making  intoxicants and to allow other inmates the opportunity to work in the commissary.


9
On May 14, 1996, Shehee filed this action under 42 U.S.C. §1983 in the United States District Court for the Eastern  District of Kentucky. Because the named defendants were federal officials and therefore not acting under color of state  law, the district court treated Shehee's action as one arising under Bivens v. Six Unknown Named Agents, 403 U.S. 388  (1971).1 In his complaint, Shehee alleged that Fleming, Morgan and Robertson retaliated against him by wrongfully  subjecting him to an investigation and firing him from his commissary job, and that Miner, Hambrick, Henry, Crosley and  Luttrell failed to take remedial action.2 Shehee further claimed that the defendants violated his rights under the Equal  Protection Clause by treating him differently from other inmates assigned to commissary jobs. Finally, Shehee contended  that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. Shehee sought  injunctive relief and damages from the defendants in their individual capacities.


10
Adopting a magistrate judge's report and recommendation, the district court dismissed Shehee's Eighth Amendment  claims, as well as his claims for injunctive relief. The defendants then moved fordismissal and/or summary judgment on  Shehee's remaining claims, asserting, inter alia, that they were entitled to qualified immunity. Again adopting a magistrate  judge's report and recommendation with one exception, the district court denied summary judgment in favor of the  defendants, with the exception of dismissing any claims against Miner, Hambrick, Crosley and Luttrell related to the  ceramics materials.3 The district court denied summary judgment in favor of the defendants based on qualified immunity,  finding that the law regarding Shehee's First Amendment and Fifth Amendment claims was clearly established. Defendants  filed a notice of interlocutory appeal of the district court's denial of their defense of qualified immunity.4

II.

11
We review a district court's denial of qualified immunity de novo. See Blake v. Wright, 179 F.3d 1003, 1007 (6th Cir.  1999). At the outset, however, we must consider whether we have jurisdiction to hear this interlocutory appeal. "A  defendant who is denied qualified immunity may file an interlocutory appeal with this Court only if that appeal involves  the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law." Berryman v. Reiger, 150 F.3d 561, 563 (6th Cir. 1998) (citations omitted). Thus, in order for an interlocutory appeal to be  appropriate, a defendant seeking qualified immunity must be willing to concede to the facts as alleged by the plaintiff and  discuss only the legal issues raised by the case. See id. at 564. "Only if the undisputed facts or the evidence viewed in the  light most favorable to the plaintiff fail to establish a prima facie violation of clear constitutional law may we decide that  the defendant is entitled to qualified immunity on an interlocutory appeal." Id. at 563 (citation omitted).


12
Here, Shehee argues that factual disputes preclude our jurisdiction over this appeal. According to Shehee, defendants  have not conceded to the facts as he alleges them, and this court must therefore resolve factual disputes in order to  determine whether defendants are entitled to qualified immunity. We disagree. Defendants are not disputing the facts in  their qualified immunity arguments; rather, defendants argue that even if Shehee's claims are true, they cannot be liable  because Shehee's only allegations against them concern the denial of Shehee's administrative complaints and their failure  to take remedial action. In addition, defendants argue that they cannot be liable under an equal protection theory. These are  legal arguments. Accordingly, we accept Shehee's factual allegations as true and now must determine defendants'  entitlement to qualified immunity under those facts.

III.

13
Qualified immunity is an affirmative defense that extends to government officials performing discretionary functions. See Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982). Under this judicially created exception, government officials are  immune from civil liability when acting in an official capacity if their actions do not violate "clearly established statutory  or constitutional rights of which a reasonable person would have known." Id. at 818. This court applies a two-part test to  determine whether a government official is entitled to the defense of qualified immunity: (1) whether the plaintiff has  shown a violation of a constitutionally protected right; and, if so, (2) whether that rightwas clearly established such that a  reasonable official would have understood that his behavior violated that right. See Summar v. Bennett, 157 F.3d 1054, 1058 (6th Cir. 1998).


14
A. Crosley, Hambrick, Henry, Miner and Luttrell


15
Defendants Crosley, Hambrick, Henry, Miner and Luttrell argue that they were not involved in Shehee's termination  from his commissary job and that their only roles in this action involve the denial of administrative grievances or the  failure to act; thus, they cannot be liable under §1983. We agree.


16
This court has held that §1983 liability must be based on more than respondeat superior, or the right to control  employees. See Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir. 1982). Thus, a supervisory official's failure to  supervise, control or train the offending individual is not actionable unless the supervisor "either encouraged the specific  incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the  official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending  officers." Id. Here, the district court found that Crosley, Hambrick, Henry, Miner and Luttrell knew of the alleged  violations against Shehee, but failed to act when the situation was in their control. The district court held that this failure to  act constituted an acquiescence in the unconstitutional conduct. We disagree with that conclusion.


17
In Poe v. Haydon, 853 F.2d 418 (6th Cir. 1988), this court held that a state employee's claims of sexual harassment  under §1983 could not be sustained against the supervisors of the offending employees. See id. at 429. We stated that:


18
Even assuming the allegations in [plaintiff's] complaint are true, she has not averred that any of the supervisory  officials who [are] defendants in this case actively participated in or authorized any harassment . . . . At best, she has  merely claimed that the appellants were aware of alleged harassment, but did not take appropriate action. This is  insufficient to impose liability on supervisory personnel under §1983.


19
Id. (internal quotations and citations omitted). Thus, liability under §1983 must be based on active unconstitutional  behavior and cannot be based upon "a mere failure to act." Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th  Cir. 1998), cert. denied, 119 S. Ct. 1763 (1999).


20
In the present case, Shehee's only allegations against Crosley, Hambrick, Henry and Miner involve their denial of his  administrative grievances and their failure to remedy the alleged retaliatory behavior. With respect to Luttrell, Shehee's  only claim is Luttrell's alleged failure to intervene on Shehee's behalf. There is no allegation that any of these defendants  directly participated, encouraged, authorized or acquiesced in the claimed retaliatory acts against Shehee, nor is there any  evidence that these defendants violated Shehee's right to equal protection under the law. Accordingly, we hold that as a  matter of law Crosley, Hambrick, Henry, Miner and Luttrell neither committed a constitutional violation nor violated a  clearly established right to which Shehee was entitled.

B. Fleming and Morgan

21
Fleming and Morgan also argue that they are entitled to qualified immunity because their actions did not constitute a  violation of Shehee's rights. With respect to Shehee's First Amendment retaliation claims, Fleming and Morgan contend  that they cannot be liable because they neither fired nor had the authority to fire Shehee from his job at the commissary, the  retaliatory act of which Shehee complains. We agree. In order to set forth a First Amendment retaliation claim,a plaintiff  must establish that: 1) he was engaged in protected conduct; 2) an adverse action was taken against him that would deter a  person of ordinary firmness from engaging in that conduct; and 3) the adverse action was motivated, in least in part, by the  protected conduct. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). Here, Shehee's protected  conduct was the filing of grievances, and the alleged adverse action taken against him was his dismissal from his  commissary job. The defect in Shehee's claim is that neither Fleming nor Morgan were involved in his firing, the alleged  adverse action. Despite Shehee's contention that Fleming and Morgan instigated his firing, these men did not have the  ability to terminate Shehee from his commissary position. For this reason, Shehee simply does not set forth a valid First  Amendment retaliation claim against Fleming or Morgan.


22
Shehee also claims that Fleming and Morgan harassed him by fabricating the alcohol allegation because Shehee refused  to participate in Fleming's alleged kickback scheme. This claim does not implicate Shehee's First Amendment rights and,  thus, is more properly characterized as a substantive due process claim of "abuse of authority."5 See id. at 387-88. Abuse  of authority is not a constitutional violation unless the behavior "shocks the conscience" or is an "egregious abuse of  governmental power." County of Sacramento v. Lewis, 523 U.S. 833, -, 118 S. Ct. 1708, 1717 (1998); Thaddeus-X, 175  F.3d at 387-88. Fleming and Morgan contend that accepting Shehee's allegations as true, their behavior did not "shock the  conscience." Again, we agree. Shehee admits to the presence of rotting fruit in a cooler in the commissary, but claims that  Fleming and Morgan fabricated the allegation that Shehee was attempting to make alcohol from the fruit in retaliation for  Shehee's refusal to participate in Fleming's kickback scheme. Shehee, however, acknowledges that Fleming and Morgan  accused all seven inmates who worked in the commissary of attempting to make alcohol. We do not believe that Fleming  and Morgan's actions of accusing all the inmates who worked in the commissary of attempting to make alcohol after  finding rotting fruit are actions that "shock the conscience," even if done with a retaliatory motive. Accordingly, Shehee's  allegations do not rise to the level of an abuse of authority claim.


23
Finally, Shehee claims that his right to equal protection under the law was violated because he was treated differently  from other inmates when he was fired before the other participants in the alcohol scheme were fired. We first note that  Shehee has not established that he is a member of a protected class as is necessary for an equal protection claim. See Henry  v. Metropolitan Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990). Shehee still can make out an equal protection claim,  however, if he can show that defendants' "different" classification of him was not rationally related to a legitimate  government interest. See City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). Even if Shehee could make this  showing, we fail to see how the defendants can be liable for treating him differently by firing him, when they had no  authority to do so. It is undisputed that Shehee was fired by Robertson, who is not a party to this appeal. Accordingly, Sheheehas failed to set forth a valid equal protection claim against the defendants.

IV.

24
For the foregoing reasons, we find that Shehee has not set forth a valid claim that Crosley, Hambrick, Henry, Miner,  Luttrell, Fleming or Morgan violated a clearly established constitutional right. We therefore REVERSE the judgment of  the district court denying qualified immunity to the defendants and REMAND this case to that court for further  proceedings in accordance with this opinion.



Notes:


*
 This decision was originally issued as an "unpublished decision" filed on October 1, 1999. On November 8, 1999, the  court designated the opinion as one recommended for full-text publication.


1
 In Bivens, the Supreme Court held that when "a federal agent acting under color of his authority" violates the  Constitution, the agent's victim may recover damages against the agent. 403 U.S. at 389.


2
 In addition to his claims regarding his firing from the commissary, Shehee alleges that Robertson retaliated against  him by charging an excessive mark-up on Shehee's request for ceramics materials that were necessary for participation in a  ceramics class. Shehee contends that the typical mark-up would be five percent for materials from a retailer; however,  Robertson charged him a twenty-five to thirty percent mark-up typical for materials from a distributor. Shehee claims that  Robertson deliberately misclassified Shehee's order as being one for a distributor so that the excessive mark-up could be  charged. Shehee further claims that Robertson knew that he could not afford that amount and, therefore, would be deprived  of participation in the ceramics class.


3
 The order inexplicably omitted Henry's name from that dismissal. Following the court's reasoning, however, that  omission was merely an oversight.


4
 Although Defendant Robertson was named in the notice of appeal, he did not file a brief and apparently has  abandoned this appeal.


5
 In Thaddeus-X, we clarified the difference between retaliation claims arising under the Due Process Clause of the  Fourteenth Amendment and those arising under a more specific provision of the Constitution. See 175 F.3d at 387. For  substantive due process claims, the retaliatory act must "shock the conscience." Id.  For those claims arising from an  enumerated constitutional violation, however, the retaliatory act does not have to reach the heightened standard of  shocking the conscience. See id. at 387-88. Rather, the retaliatory act must be such that it would deter a person of ordinary  firmness from continuing to engage in the protected conduct. See id. at 394.


