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

                                                                            FILED
                                                                           April 24, 2008
                                     No. 07-50888
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk




PAT LAND,

                                                  Plaintiff-Appellee,
v.

RICHARD DIETZ, In His Official and Individual Capacities;
DALE CHILDERS, In His Official and Individual Capacities,

                                                  Defendants-Appellants.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                 No. 7:06-CV-99




Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Richard Dietz and Dale Childers appeal the denial of their motion for sum-
mary judgment on the basis of qualified immunity. Because we lack jurisdiction,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50888

we dismiss the appeal and remand for further proceedings.


                                        I.
      Pat Land began working for the Odessa Fire Department in 1980. At the
time of his termination, he held the rank of Senior Captain. In late 2004, the Ec-
tor County Health Department alerted Childers, an Assistant Fire Chief, that
close to 100 students had come down with rashes, nausea, vomiting, and respira-
tory problems at Barbara Jordan Elementary School in the Ector County Inde-
pendent School District. Numerous public health officials, including Land, were
called in to investigate.
      Land served as the incident commander. Along with an expert retained
by the school district, the fire department’s Haz-Mat crew tested for toxic sub-
stances. The tests indicated a high level of acetone in the areas where the ma-
jority of affected students had class. Further testing, after the rooms had been
aired out, also showed a positive result, albeit at a lower level. The final test,
taken after more extensive airing out of the school, did not detect acetone.
      Land and the school district’s expert, Mark Graves, recommended that the
school remain closed, because they could not rule out acetone as a cause of the
health problems. Childers instructed Land not to talk to the media about the
test results.
      On December 5, Childers and others involved in the response had a meet-
ing to evaluate the findings, decide what to tell the parents, and determine
whether to open the school. The group decided to inform the parents that all
tests were negative, which they communicated in a press release. The school
district superintendent decided to reopen the school the next day.
      Students continued to experience health problems. For example, a “Health
Update” for February 17, 2005, reported that forty-four students had come down
with what had become known as the “Jordan Rash.” Because Land worked for


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the fire department and had a child at the school, parents asked him for infor-
mation regarding the investigation. Pursuant to Childers’s instruction, however,
Land kept silent.
      The school district and other officials decided to hold two informational
meetings with parents on January 12 and 13. Land attended the January 12
meeting, at which Childers told the parents that all the tests were negative. To
communicate his disagreement with the story being told to parents, Land walked
out of the meeting.
      After the meeting, Land went to talk to Childers to ask why the officials
had decided to tell the parents, falsely, that the test results were negative. Land
went so far as to accuse Childers of lying to the parents. Childers became upset
and said he did not appreciate Land’s questioning his integrity. Childers spoke
to Dietz, who testified that Childers was upset and thought Land was being dis-
respectful. Land also visited with Dietz about his concern that Childers had lied
to the parents.
      On February 20, Land was working at his business. He testified that over
the course of the evening he drank four beers and ate snacks but did not feel
drunk or tipsy. Around 7:00 p.m., he took several prescription medications, in-
cluding Neurotin and Cymbalta for neuropathy. He remembers leaving to go
home around 8:00 p.m. Later that night, a DPS trooper found him parked in his
truck on the side of the road and arrested him for driving while intoxicated
(“DWI”).
      Land immediately reported his arrest to his superiors, in accordance with
Fire Department policy. Dietz testified that Land told him that he thought his
impairment had resulted from the interaction between his medications and the
alcohol. Assistant Fire Chief Roger Boyd told Land not to worry about it, be-
cause he was not the first fire fighter to whom this had happened. Childers told
him, “There’s no rule that says there’s like any kind of automatic termination,


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I can tell you that. That’s all I know.”
      The department began conducting an investigation into the DWI. Land’s
physician sent two letters explaining the possible side effects of the combination
of alcohol and prescriptions. Childers admits that he knew nothing about Cym-
balta, did not contact Land’s physician, and was not particularly interested in
whether a drug/alcohol interaction might have caused Land’s impairment. He
also testified that Land’s case was the first in which he had watched the video-
tape of a fire fighter’s arrest for DWI. Childers and Dietz went to view the video-
tape together.
      Childers nevertheless prepared a report for Dietz in which he recommend-
ed Land be terminated. Childers testified that he spoke to Dietz concerning his
recommendation. Boyd also spoke to Dietz and recommended less severe sanc-
tions. Dietz testified that he does not remember talking to either.
      Following the investigation, Dietz terminated Land but thereafter meted
out a much milder punishment to another fire fighter who had been cited for
DWI. In December 2005, the DWI charges against Land were dropped.
      Land sued Dietz and Childers pursuant to 42 U.S.C. § 1983, asserting re-
taliatory termination based on speech protected by the First Amendment. Speci-
fically, Land alleged that the defendants had discharged him in retaliation for
his behavior surrounding the health problems at the school. Land and Dietz un-
successfully moved for summary judgment based on qualified immunity.


                                        II.
      Our jurisdiction extends only to “final decisions” of district courts. See 28
U.S.C. § 1291 (2000). The denial of summary judgment is not ordinarily a “final
decision,” but qualified immunity presents a special case. To the extent that a
denial of summary judgment on the issue of qualified immunity turns on ques-
tions of law, we may review it on interlocutory appeal. Connelly v. Tex. Dep’t of

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Criminal Justice, 484 F.3d 343, 345 (5th Cir. 2007). If, however, the defendant
makes a factual, rather than legal, sufficiency claim, we must dismiss the appeal
for want of jurisdiction. Id.
      Our jurisdiction is properly invoked only insofar as we are asked to deter-
mine whether “the district court erred in assessing the legal significance of the
conduct that the district court deemed sufficiently supported for purposes of
summary judgment.” Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en
banc). Where factual disputes exist, we accept the plaintiff’s version.
      On appeal, we determine only whether Dietz and Childers are entitled to
qualified immunity as a matter of law, and there are only two legal questions we
address: (1) whether the plaintiff has alleged a violation of a constitutional right
and (2) whether the defendant’s conduct was objectively reasonable in light of
the clearly established law at the time of the incident. Connelly, 484 F.3d at
346. (citing McClendon v. City of Columbia, 305 F.3d 314, 322-23 (5th Cir.
2002)). We dismiss any appeal that relies on arguments not addressed to either
of these issues.


                                        A.
      A claim of First Amendment retaliation has four elements: (1) The plain-
tiff suffered an adverse employment decision; (2) his speech involved a matter
of public concern; (3) his interest in speaking outweighed the governmental de-
fendant’s interest in promoting efficiency; and (4) the protected speech motivated
the defendant’s conduct. Kinney, 367 F.3d at 356. Childers contends that Land
has not stated a First Amendment violation as to him, because the only evidence
in the record demonstrates that his role was limited to conducting an investiga-
tion, and he did not cause the adverse action. In other words, Childers alleges
that Land cannot satisfy the fourth element as to him.
      The district court did not articulate specific facts upon which it based its

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decision as to Childers. Where a district court “fails to set forth the factual dis-
putes that preclude granting summary judgment, we may be required to review
the record in order to determine what facts the district court, in the light most
favorable to the nonmoving party, likely assumed.” Id., at 348 (internal quota-
tions and citations omitted).
      In the employment context, the actions of ordinary, non-supervisory em-
ployees are not typically a basis for a claim. Gee v. Principi, 289 F.3d 342, 346
(5th Cir. 2002). An exception is where the decision-maker functions as the or-
dinary employee’s “cat’s paw” such that the adverse employment decision could
fairly be attributed to the employee. Id.
      The district court denied Childers’s motion and determined that there
were genuine issues of material fact because Childers (1) prepared the recom-
mendation that was accepted, even though it was disputed by other subordi-
nates; (2) had a special relationship with Dietz as evidenced by his going along
with Dietz to view a videotape of Land’s DWI arrest; (3) discounted Land’s at-
tempt to explain his incapacity for medical reasons; and (4) was angry with Land
for his protected speech. These facts support the notion that Dietz may have
been Childers’s “cat’s paw.”
      Accordingly, this case falls into the exception, and Land’s case may pro-
ceed against Childers. Defendants, for purposes of their appeal, have conceded
that Land’s speech involved a matter of public concern. The remaining elements
turn not on a legal question but on factual ones. The defendants therefore have
conceded that Land has alleged a violation of a constitutional right.


                                        B.
      The second question we may address is whether defendants’ conduct was
objectively reasonable in light of clearly established law. Public employers may
escape liability if they prove that they would have taken the same adverse em-

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ployment action regardless of the protected conduct. Gonzales v. Dallas County,
249 F.3d 406, 412 (5th Cir. 2001). This is not a back door to our usual refusal to
reevaluate the district court’s factual determination; the only question is wheth-
er defendants acted in an objectively reasonable manner, with respect to the con-
stitutional rights, notwithstanding the factual disputes. Id.
      Defendants urge that their behavior was objectively reasonable, because
the city and fire department had policies that allowed for termination in light of
Land’s DWI. Land counters by noting that no one else had been terminated pur-
suant to that policy and that he was terminated for his speech. There are genu-
ine issues of fact as to whether the termination was objectively reasonable, be-
cause at root it depends on defendants’ motives. Because defendants’ argument
goes to the genuineness of Land’s factual assertions rather than to their materi-
ality, we may not consider this argument. Connelly, 484 F.3d at 347.
      The appeal is DISMISSED, and this matter is REMANDED. We express
no view on the ultimate decision on the merits or on precisely how the district
court should proceed on remand.




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