           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           April 24, 2008

                                       No. 07-30184                   Charles R. Fulbruge III
                                                                              Clerk

GWENDOLYN BLACKWELL; DEMONA HARRISON; OPHELIA WILSON
WALKER

                                                  Plaintiffs-Appellees
v.

ALBERT LAQUE, St. Charles Parish President

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:05-CV-2105


Before KING, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Gwendolyn Blackwell, Demona Harrison, and Ophelia Wilson Walker
(“Plaintiffs”) brought due process, First Amendment, and various discrimination
claims, along with a state law claim, against the St. Charles Parish and Parish
President Albert Laque. All claims were related to Plaintiffs’ employment with
the Parish’s Department of Community Services. Both defendants moved for
summary judgment and Laque asserted that he was entitled to qualified


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30184

immunity. Although the district court granted that motion in part and dismissed
several claims, it concluded that Laque was not entitled to qualified immunity
on Plaintiffs’ race discrimination, due process, and First Amendment claims.
Laque appeals, arguing that he is entitled to qualified immunity.
                                              I.
       Plaintiffs, who are African-American females, were employed by St.
Charles Parish in the Department of Community Services (“DCS”) until June
2004. During Plaintiffs’ employment, DCS employees were not part of the
Louisiana civil service system.1 In 2002, Plaintiffs and other DCS employees,
with help from a Parish councilwoman, sought to have the DCS included in the
civil service. Proponents of this effort contended that the St. Charles Parish
Home Rule Charter made DCS employees eligible for inclusion in the civil
service.
       The Parish appears to have been ambivalent, or even opposed, to the
proposal to include DCS employees in the civil service. For example, the Parish
required proponents to seek the Louisiana Attorney General’s opinion on
whether DCS employees were eligible for civil service membership, and after the
Attorney General confirmed their eligibility, the Parish commissioned an
independent evaluation of the DCS. That evaluation resulted in a report
recommending that three DCS staff positions be eliminated.
       The report was issued in May 2004, and Laque authorized Plaintiffs’
terminations the next month. Shortly after Plaintiffs’ terminations, the Civil
Service Board held a meeting on July 6, 2004, where it classified the remaining
DCS workers as members of the civil service. Thereafter, Plaintiffs brought suit

       1
        The purpose of the Louisiana civil service system is “to secure adequate protection to
career public employees from political discrimination.” Owen v. City of Shreveport, 705 So. 2d
795, 797 (La. Ct. App. 1998). “[A]n employee who has gained classified permanent civil service
status has an entitlement to his position, since he has already received the position, and
applicable law guarantees him continued employment, save for some exceptions.” Bell v. Dep’t
of Health & Human Res., 483 So. 2d 945, 949 (La. 1986).

                                              2
                                      No. 07-30184

against the Parish and Parish President Albert Laque, asserting claims of race,
gender, age, and national origin discrimination under Title VII of the Civil
Rights Act of 1964; similar claims under 42 U.S.C. §§ 1981 and 1983; claims for
First Amendment retaliation; claims for Fifth and Fourteenth Amendment due
process violations; and a state law claim for intentional infliction of emotional
distress. Both defendants moved for summary judgment and Laque additionally
asserted that he was entitled to qualified immunity. The district court granted
summary judgment to the defendants in part, dismissing Plaintiffs’ age and
national origin discrimination claims and their state law emotional distress
claim. The district court denied the summary judgment motion on Plaintiffs’
remaining claims and held that Laque was not entitled to qualified immunity.2
In this interlocutory appeal, Laque appeals the denial of qualified immunity.
                                            II.
                   A. Jurisdiction and Standard of Review
       The district court concluded that Laque is not entitled to qualified
immunity. “An order denying qualified immunity, to the extent it turns on an
issue of law, is immediately appealable.” Atteberry v. Nocona Gen. Hosp., 430
F.3d 245, 251 (5th Cir. 2005) (internal quotation marks omitted). However, our
jurisdiction is limited to reviewing questions of law. Meadours v. Ermel, 483 F.3d
417, 422 (5th Cir. 2007). The district court’s finding that genuine factual
disputes exist is a factual determination that we may not review in this
interlocutory appeal, but the district court’s finding that a particular dispute is
material is a legal determination that we may review. Foley v. Univ. of Houston,
355 F.3d 333, 337 (5th Cir. 2003); see Meadours, 483 F.3d at 422 (“[W]e may only
review the district court’s conclusion that issues of fact are material (a legal

       2
      In ruling on Laque’s motion, the district court ordered “that Defendant Laque’s Motion
For Summary Judgment on the First Amendment claims and qualified immunity are
DENIED.” We find that this language was effective to reject Laque’s assertion of qualified
immunity as to each of Plaintiffs’ claims.

                                             3
                                  No. 07-30184

question), but we may not review the conclusion that those issues of fact are
genuine (a fact question).”). We review the district court’s refusal to grant
qualified immunity de novo. Atteberry, 430 F.3d at 252.
      As we explain in more detail below, the qualified immunity analysis
requires us to consider whether an official’s conduct “is objectively reasonable in
light of clearly established law.” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.
2004) (en banc). The legal determination involved in this analysis is whether “a
certain course of conduct would, as a matter of law, be objectively unreasonable
in light of clearly established law.” Id. The factual determination involved is
whether “a genuine issue of fact exists regarding whether the defendant(s) did,
in fact, engage in such conduct.” Id. When the district court finds that the
evidence presented raises a genuine factual dispute “we accept the plaintiffs’
version of the facts as true.” Id. at 348 (summary judgment case); see also
Gonzales v. Dallas County, 249 F.3d 406, 411 (5th Cir. 2001) (“Consequently, on
interlocutory appeal the public official must be prepared to concede the best view
of the facts to the plaintiff and discuss only the legal issues raised by the
appeal.”) (summary judgment case).
                            B. Qualified Immunity
      The defense of qualified immunity shields government officials performing
discretionary functions from civil liability “‘insofar as their conduct does not
violate clearly established . . . constitutional rights of which a reasonable person
would have known.’” Flores v. City of Palacios, 381 F.3d 391, 393-94 (5th Cir.
2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Applying this
standard, we view the facts in the light most favorable to the party asserting the
injury and determine (1) whether the defendant’s conduct violated the plaintiff’s
constitutional rights, and (2) “whether the defendant[’]s conduct was objectively
reasonable in light of clearly established law.” Goodson v. City of Corpus Christi,
202 F.3d 730, 736 (5th Cir. 2000) (internal quotation marks omitted); Scott v.

                                         4
                                       No. 07-30184

Harris, 127 S. Ct. 1769, 1774 (2007). If the defendant’s conduct did not violate
a plaintiff’s constitutional rights under the first prong, or his conduct was
objectively reasonable under the second prong, he is entitled to qualified
immunity. Once a defendant asserts a qualified immunity defense, the burden
shifts to the plaintiff to show that the defense is inapplicable. Hathaway v.
Bazany, 507 F.3d 312, 319 (5th Cir. 2007).
       The district court found that Laque was not entitled to qualified immunity
on Plaintiffs’ remaining claims: (1) race discrimination, (2) due process violation,
(3) First Amendment retaliation related to the “push for civil service” and (4)
First Amendment retaliation related to Plaintiffs’ support for Laque’s political
opponent. We examine each in turn.
                              1. Race discrimination claim
       Plaintiffs brought race discrimination claims pursuant to Title VII of the
Civil Rights Act of 1964 and under 42 U.S.C. §§ 1981 and 1983 for alleged
violations of the Equal Protection Clause.3 We will not consider Plaintiffs’ Title
VII claim in this interlocutory appeal because “[i]ndividuals are not liable under
Title VII in either their individual or official capacities.” Ackel v. Nat’l


       3
          We decline Laque’s invitation to find that Plaintiffs’ race discrimination and due
process claims are waived. Laque argues that Plaintiffs failed to contest Laque’s assertion of
qualified immunity in their Opposition to Laque’s motion for summary judgment. We recognize
the well-established rule that “[i]f a party fails to assert a legal reason why summary judgment
should not be granted, that ground is waived.” See Vaughner v. Pulito, 804 F.2d 873, 877 n.2
(5th Cir. 1986); see also Grenier v. Cyanamid Plastics, Inc.,70 F.3d 667, 678 (1st Cir. 1995)
(“Even an issue raised in the complaint but ignored at summary judgment may be deemed
waived.”). Plaintiffs presented arguments relevant to Laque’s qualified immunity defense in
their Opposition to Laque’s summary judgment motion, although those arguments did not
appear in the section of Plaintiffs’ Opposition responding to Laque’s qualified immunity
defense. However, Plaintiffs’ Opposition brief makes clear their contentions that race
motivated the refusal to classify DCS employees as civil service and that their terminations
violated their due process rights. Given Plaintiffs’ discussion of the claims and relevant legal
arguments, it cannot be said that Plaintiffs “ignored” issues raised in their complaint, see
Grenier,70 F.3d at 678, or that they failed to assert legal reasons why Laque’s qualified
immunity defense fails. See Vaughner, 804 F.2d at 877 n.2.


                                               5
                                  No. 07-30184

Commc’ns, Inc., 339 F.3d 376, 381 n.1 (5th Cir. 2003). However, this limitation
does not extend to Plaintiffs’ other causes of action, which we presently consider.
      “[T]he inquiry into intentional discrimination is essentially the same for
individual actions brought under sections 1981 and 1983, and Title VII.”
Lauderdale v. Texas Dep’t of Criminal Justice, Institutional Div., 512 F.3d 157,
166 (5th Cir. 2007) (internal quotation marks omitted)); Foley, 355 F.3d at 340
n.8. Thus, Plaintiffs are required to show that they were (1) members of a
protected class, (2) qualified for the position at issue, (3) subject to an adverse
employment action, and (4) that similarly situated individuals outside the
protected class were treated more favorably. Okoye v. Univ. of Tex. Houston
Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). If Plaintiffs establish a
prima facie case, the burden of production shifts to defendants to provide a
“legitimate, nondiscriminatory reason” for the action. Id. at 512.
      The district court held that Plaintiffs established a prima facie case of race
discrimination because (1) they are African-American, (2) they are qualified for
the positions at issue, (3) they were subject to adverse employment actions in
that they were denied civil service status and ultimately terminated, and (4)
there is a material factual dispute about whether similarly situated white
employees were treated more favorably.
      We agree that Plaintiffs have established a prima facie case of race
discrimination for summary judgment purposes. There is no dispute on appeal
that the first three elements are satisfied. Regarding the fourth element, the
district court found that a genuine factual question exists regarding whether
white employees were treated more favorably than Plaintiffs. We may not review
that conclusion in this interlocutory appeal, and because that dispute is material
to establishing a race discrimination claim, Plaintiffs have established a prima
facie case. To the extent that Laque argues that Plaintiffs’ terminations were
part of the typical process for converting the department into the civil service,

                                         6
                                  No. 07-30184

and not the product of racial discrimination, the same genuine issue of fact cited
by the district court—whether similarly situated white employees and Parish
departments were treated more favorably—precludes qualified immunity at this
stage of proceedings. See Kinney, 367 F.3d at 346-47. Recognizing that we may
not review the district court’s finding that genuine issues of fact exist, we
conclude that for purposes of this appeal Plaintiffs have established a
constitutional violation under the first qualified immunity prong.
      We next consider the second qualified immunity prong: whether Laque’s
actions were objectively reasonable in light of clearly established law. See
Goodson, 202 F.3d at 736. It was clearly established that the Equal Protection
Clause of the Fourteenth Amendment prohibits racial discrimination of the sort
alleged. Further, the district court found that a genuine dispute exists about
whether white employees were treated more favorably. Viewing the facts in the
light most favorable to the Plaintiffs, as we must, we cannot conclude that
Laque’s actions were objectively reasonable under clearly established law. See
Kinney, 367 F.3d at 348. Thus, Laque is not entitled to qualified immunity on
this claim.
                              2. Due process claim
      Plaintiffs allege that Laque violated their Fifth and Fourteenth
Amendment due process rights by terminating them without following the
procedures required for terminating civil service employees. To establish a viable
due process claim, Plaintiffs must show that they had a property interest in
continued employment. See Cabrol v. Town of Youngsville, 106 F.3d 101, 105
(5th Cir. 1997) (“Absent a property interest, there is nothing subject to due
process protections and our inquiry ends.”). There is no automatic property
interest in continued government employment. Id. However, “[i]n Louisiana, a
permanent classified civil service employee has a protected property interest in
her job.” Wallace v. Shreve Mem’l Library, 97 F.3d 746, 748 (5th Cir. 1996); Bell

                                        7
                                        No. 07-30184

v. Dep’t Health and Human Res., 483 So. 2d 945, 949 (La. 1986) (“[C]lassified
civil service status is a property right . . . .”).
       Plaintiffs contend that the Parish Home Rule Charter gave them a
property interest in their positions because it made them “de facto” civil service
employees. Laque argues that Plaintiffs had no property interest in continued
employment because they were not actually members of the civil service. Laque
points out that the Parish Home Rule Charter and the State Attorney General
opinion merely provide that Plaintiffs are eligible for inclusion in the civil
service. To prevail on the second qualified immunity prong, Plaintiffs must show
that Laque’s conduct was not “objectively reasonable in light of clearly
established law.” Goodson, 202 F.3d at 736 (internal quotation marks omitted).
We find that Plaintiffs have failed to make the required showing. Laque
authorized Plaintiffs’ terminations without providing them the benefit of
procedural protections, but the record makes clear that a reasonable person in
Laque’s position would not have considered Plaintiffs to be entitled to those
protections. See Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007) (“[T]he court
applies an objective standard based on the viewpoint of a reasonable official in
light of the information then available.”). Plaintiffs had never been recognized
as part of the civil service and Plaintiffs’ novel theory that they were “de facto”
members of the civil service was not, and is not, clearly established law. Stated
another way, based on the information then available, a reasonable person
would not have felt it necessary to afford Plaintiffs the protections entitled to
civil service members. Thus, Plaintiffs have failed to establish that Laque’s
actions were unreasonable in light of clearly established law and he is entitled
to qualified immunity on this claim. See id.4

       4
         The district court also found that genuine issues of fact exist regarding Laque’s intent
and involvement in the termination process. We find this dispute immaterial to Plaintiffs’ due
process claim. Even if Laque intentionally deprived Plaintiffs of procedural protections and was
involved in the termination process, we find that those actions were not objectively

                                               8
                                      No. 07-30184

     3. First Amendment claim related to Plaintiffs’ “push for civil service”
       Plaintiffs argue that they were terminated in retaliation for their
involvement in the “push” to include the DCS in the civil service. In order to
prevail on a § 1983 claim for First Amendment retaliation, Plaintiffs must show
that (1) they “suffered an adverse employment decision,” (2) their “speech
involved a matter of public concern,” (3) their “interest in commenting on
matters of public concern outweighs [their] employer’s interest in promoting
efficiency,” and (4) their “speech motivated the adverse employment decision.”
Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 825 (5th Cir. 2007).
       “Whether the speech at issue is on a matter of public concern is a question
of law that must be determined by the court.” Salge v. Edna Indep. Sch. Dist.,
411 F.3d 178, 184 (5th Cir. 2005). In making this determination, one approach
is to consider whether the “public employee speaks not as a citizen upon matters
of public concern, but instead as an employee upon matters only of personal
interest.” Stotter, 508 F.3d at 825 (quotation marks omitted). In such a case we
typically conclude that the speech does not involve a matter of public concern.
See id. However, in cases “in which the employee speaks on a matter of public
concern but also has a personal interest as well,” we examine the content,
context, and form of the speech to determine whether it is predominantly private
in nature. Id.5
       The district court found that Plaintiffs’ “support and participation in the
cause to include DCS employees in civil service addressed a public concern.” The
court reasoned that because Plaintiffs claimed that they were excluded from the
civil service because of racial discrimination, their “push for civil service”


unreasonable for the reasons stated above.
       5
         We have employed several approaches to analyzing mixed speech cases. See Stotter,
508 F.3d at 825. Because these approaches “ultimately ask the same question,” id. at 825 n.4,
we find it unnecessary to discuss each approach here.

                                             9
                                        No. 07-30184

involved a matter of public concern. Laque argues that the “push for civil service
status” involved only matters of personal interest and did not involve a matter
of public concern. See Teague v. City of Flower Mound, 179 F.3d 377, 381 (5th
Cir. 1999) (“[W]e have held that speech concerning the conditions of one’s
employment is a private matter.”).
       While Plaintiffs’ support for the “push for civil service” clearly furthered
their personal interests, they have presented some evidence that they were
excluded from the civil service system on the basis of race. We agree that this
evidence indicates that Plaintiffs’ speech also involved the broader public
interest of remedying alleged racial discrimination in Parish employment.6
Further, we have held that speech related to racial discrimination “almost
always involves matters of public concern.” Charles v. Grief, --- F.3d ----, No.
07-50537, 2008 WL 788618, at *5 (5th Cir. Mar. 26, 2008); see Victor v.
McElveen, 150 F.3d 451, 456 (5th Cir. 1998) (characterizing “a protest against
racial discrimination” as “inherently of public concern”). Given the evidence
suggesting that Plaintiffs’ speech was motivated, at least in part, by a desire to
remedy racial discrimination, we conclude that Plaintiffs’ speech involved a
matter of public concern.
       In addition, we reject Laque’s argument that Plaintiffs’ involvement in the
“push for civil service” could not have motivated their terminations. On this
point we must defer to the district court’s conclusion that genuine issues of fact
exist “as to [whether] Plaintiffs were terminated as a result of their involvement
in the civil service inclusion process.”7 Laque raises no argument concerning the
remaining elements and we conclude that Plaintiffs have established, for
summary judgment purposes, a valid First Amendment claim.

       6
         We note that Laque has not argued that Plaintiffs have failed to provide a “precise
identification” of the speech at issue. See Foley, 355 F.3d at 342.
       7
           We express no opinion on the merits of Laque’s argument on this point.

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                                      No. 07-30184

       Further, we cannot find at this stage that Laque’s actions were objectively
reasonable under clearly established law. See Goodson, 202 F.3d at 736. It has
been clearly established for some time that a public employer may not retaliate
against an employee because she exercised her right to engage in protected
speech. Plaintiffs evidence, if believed, establishes just that. We conclude that
Laque is not entitled to qualified immunity on this claim.
           4. First Amendment claim related to Plaintiffs’ political speech
       Plaintiffs also argue that they were terminated for supporting Laque’s
political opponent, Darnell Abadie, in her campaign for Parish President.
Plaintiffs supported Abadie’s campaign and at least one of them displayed
Abadie’s political signs at her home. As mentioned, to prevail on a First
Amendment claim Plaintiffs must establish that (1) they suffered an adverse
employment decision, (2) their speech involved a matter of public concern, (3)
their interest in commenting on matters of public concern outweighs their
employer’s interest in promoting efficiency, and (4) their speech motivated the
adverse employment action. Stotter, 508 F.3d at 825. If Plaintiffs establish these
four elements, “the burden shifts to defendants to show by a preponderance of
the evidence that they would have come to the same conclusion in the absence
of the protected conduct.” Beattie v. Madison County Sch. Dist., 254 F.3d 595,
601 (5th Cir. 2001).
       We agree that Plaintiffs’ terminations constitute an adverse employment
decision, and that their political speech constitutes a matter of public concern.
See Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (termination is
an adverse employment action);8 Jordan v. Ector County, 516 F.3d 290, 297 n.24


       8
          We need not decide whether the adverse employment action standard articulated in
Burlington Northern & Santa Fe Railway Co. v. White applies to First Amendment retaliation
cases, see Laredo Fraternal Order of Police v. City of Laredo, No. L-04-134, 2008 WL 678698,
at *2 (S.D. Tex. March 12, 2008), because there is no dispute that termination constitutes an
adverse employment action under any potentially applicable standard.

                                             11
                                  No. 07-30184

(5th Cir. 2008) (citing, inter alia, Aucoin v. Haney, 306 F.3d 268, 274 (5th Cir.
2002) (“There is no doubt that campaigning for a political candidate relates to
a matter of public concern.”)). Also, no argument has been made that Laque’s
interests in promoting efficiency outweigh Plaintiffs’ interest in commenting on
matters of public concern.
      Turning to the final element, the district court found that genuine issues
of fact exist regarding Laque’s intent. As mentioned, we may not review the
district court’s conclusion that genuine issues of fact exist. Kinney, 367 F.3d at
347. Our review is limited to determining whether this issue is material. Laque’s
intent is material because this First Amendment claim hinges on whether
Plaintiffs’ political speech motivated Laque to terminate them. If Laque fired
Plaintiffs in retaliation for their support of Abadie, as Plaintiffs’ evidence
appears to indicate, then this element would be satisfied and he would have
violated their constitutional rights.
      Regarding the second qualified immunity prong, Plaintiffs must establish
that Laque’s actions were not objectively reasonable in light of clearly
established law. See Goodson, 202 F.3d at 736. As mentioned, it was clearly
established that the First Amendment generally prohibits a public employer
from retaliating against an employee because she exercised her right to engage
in protected speech. See Stotter, 508 F.3d at 825. Given the genuine factual
dispute about Laque’s intent, we simply cannot conclude that Laque’s actions
were objectively reasonable under clearly established law. See Kinney, 367 F.3d
at 348.
      In affirming the district court’s order on this claim, we reject Laque’s
argument that Plaintiffs have failed to show that their campaign support for
Abadie motivated terminations that took place more than seven months later.
The district court’s conclusion that Laque’s intent is genuinely disputed, leads
us to reject this argument because Laque’s intent is central to determining what

                                        12
                                     No. 07-30184

motivated the terminations. We also reject Laque’s contention that Plaintiffs
would have been terminated regardless of their political speech. Based on the
evidence presented, we cannot determine whether Laque would have terminated
these particular Plaintiffs absent their political speech because that
determination is intertwined with Laque’s subjective intent, a genuinely
disputed fact issue.9 Given the genuine issues of material fact concerning
Laque’s intent, we find that he is not entitled to qualified immunity on this
claim.
                                           III.
       For the foregoing reasons we affirm the part of the district court’s order
denying Laque’s motion for qualified immunity on Plaintiffs’ race discrimination
claims and their First Amendment claims. We reverse the district court’s order
to the extent it denied Laque qualified immunity on Plaintiffs’ due process claim.
AFFIRMED IN PART, REVERSED IN PART.




       9
        Laque claims that he merely relied on recommendations from his staff in deciding to
terminate Plaintiffs and that his reliance on those recommendations was objectively
reasonable. However, the district court’s finding that genuine fact issues exist regarding
Laque’s intent prevent us from accepting his subjective explanation of intent.

                                            13
