                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit



                                  No. 00-50106


                              BECKY STERNADEL,

                                                             Plaintiff-Appellee,


                                     VERSUS

      WAYNE SCOTT, Etc.; Et Al.,

                                                            Defendants,

  WAYNE SCOTT, Executive Director, Texas Department of Criminal
Justice; PAT IVEY; RACHEL GOMEZ; WILLIAM MUSSER; JOE FLORES; CARL
                            JEFFRIES,

                                                          Defendants-Appellants.



             Appeal from the United States District Court
               For the Western District of Texas, Austin
                              (A-99-CV-314-SS)
                                  May 7, 2001
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

      This appeal arises from a suit brought by Becky Sternadel

pursuant   to   42   U.S.C.   §    1983       for   a   violation   of   the   First

Amendment.      Defendant Wayne Scott filed a motion for summary


  *
   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opinion should not be published and is not precedent except under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.

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judgment    on    the    basis   of    Eleventh   Amendment      immunity,     and

defendants Pat Ivey, Rachel Gomez, William Musser, Joe Flores, and

Carl Jeffries filed motions for summary judgment on the basis of

qualified    immunity.       The   district    court    denied   all    of   these

motions, and this appeal ensued.             For the following reasons, we

affirm the       judgment   of   the   district   court   based    on   Eleventh

Amendment immunity, but we dismiss the portion of the appeal based

on qualified immunity.

                    I.   Factual and Procedural History

     Sternadel was employed as a District Parole Officer for the

Texas Department of Criminal Justice, Paroles Division (“TDCJ”) in

the Wichita Falls District Parole Office.              In 1996, she and other

parole officers met with a reporter from the Wall Street Journal to

discuss the overtime policy and work ethic of the Parole Division.

Sternadel was quoted in the article, which revealed that she had

received approximately $3000 for unpaid overtime as a result of a

settlement with the Labor Department.               She later appeared on

national television to discuss the article, as well as on local

television in an interview along with Ivey, Regional Director of

TDCJ.

     Five days later, on July 17, 1996, Sternadel was charged with

improper association with a client because a parolee had come

uninvited to her home and was denied access.            Subsequently, she was

found not guilty of the violation.

     On August 15, 1996, Sternadel attended a public meeting

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regarding the renewal of a contract between TDCJ and the Salvation

Army for a halfway house.       Sternadel spoke in opposition to the

contract,   and   the    presiding   TDCJ   Public   Information   Officer

attempted to end the meeting without a vote.         After public outcry,

a vote was taken, and the contract was not renewed.        A notation was

placed in Sternadel’s file that she had spoken out against the

halfway house.    In January of 1997, Sternadel complained to Ivey

that her supervisors were creating a hostile work environment, and

Sternadel alleged that Ivey told her that if this were the old

days, she would be gone for what she had done.

     On April 1, 1997, Sternadel appeared at the Wichita County

Courthouse for a parole hearing on parolee Michael Wilson.          At the

hearing, Sternadel told Joyce Bond, mother of Michael Wilson, that

Wilson’s parol would most likely be revoked.          Bond and two other

Wilson relatives who had also been present at the parol hearing

complained to Gomez, Sternadel’s supervisor, that Sternadel had

behaved unprofessionally during the parole hearing.         On April 23,

Gomez went to Bond’s house to obtain statements from the family

members.    That day Sternadel was charged with failure to obey a

proper order from an authority, use of profane or abusive language

or racial slurs, misconduct, and cohabitation with an inmate or an

inmate’s family, which stemmed from an allegation that Sternadel

hugged an inmate.       On April 25, Gomez interviewed the inmate who

was allegedly hugged as well as another witness, both of whom

denied that Sternadel had violated any rules, but no written

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statements were taken.

     A hearing on these violations was held on April 29, 1997, by

Flores, Assistant Regional Director of TDCJ.    Bond retracted her

statements, and Sternadel was found not guilty of two of the

violations.   However, on May 5, Flores found her guilty of hugging

an inmate and recommended dismissal.      The following day, Bond

contacted Sternadel at her home in order to retract her statement.

Sternadel went to Bond’s home on May 7, and typed a new statement

for Bond as well as for her daughter.          Both new statements

indicated that Gomez had pressured the witnesses into saying that

Sternadel had hugged an inmate.   Later, the third of the witnesses

also stated that Gomez had told her what to put into her statement.

     On May 30, 1997, at a mediation, Sternadel presented evidence

that refuted Flores’s conclusion that she had hugged an inmate.   A

new hearing was held, and no discipline was imposed.      However,

following this hearing, Sternadel was repeatedly charged with

violating other rules; most importantly, she was charged with

tampering with a witness, based on an allegation that Sternadel

promised to lift the warrant on Bond’s son if Bond would retract

her statement against Sternadel.      Musser, an Internal Affairs

investigator for TDCJ, investigated the charge and prepared a

report; at a September hearing, the presiding officer found her

guilty and recommended dismissal. Sternadel was later acquitted of

criminal charges stemming from the same conduct.       She filed a

grievance, which Jeffries, acting Director of the Parole Division,

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denied.

     Sternadel   brought    suit   under   42   U.S.C.   §   1983   against

defendants Ivey, Gomez, Musser, Flores, and Jeffries, inter alios,

in their individual capacities and against Scott in his official

capacity.   At issue on this appeal are the following motions, all

of which were denied: Scott’s motion to dismiss based on Eleventh

Amendment immunity, and the remaining defendants’ motions for

summary judgment based on qualified immunity.

                        II. Standard of Review

     We review the grant of summary judgment de novo, applying the

same standards as the district court.        Piazza v. Maine, 217 F.3d

239, 244 (5th Cir. 2000).    We view facts and inferences in the light

most favorable to the non-movant.       Hall v. Gillman, Inc., 81 F.3d

35, 36-37 (5th Cir. 1996).    Summary judgment is granted if there is

no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law.         Fed. R. Civ. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 327 (1986).

                 III.   Eleventh Amendment Immunity

     Defendant Scott’s motion for dismissal is based on a claim of

Eleventh Amendment immunity. Sternadel named Scott as a defendant,

seeking the prospective equitable relief of reinstatement.           Claims

for prospective relief are not barred by sovereign immunity when it

is alleged that a state official acted in violation of federal law.

Warnock v. Pecos County, Texas, 88 F.3d 341, 343 (5th Cir. 1996)



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(citing Ex parte Young, 209 U.S. 123, 155-56 (1908); Edelman v.

Jordan, 415 U.S. 651, 664 (1974)); see also Brennan v. Stewart, 834

F.2d 1248, 1253 (5th Cir. 1988) (“The Eleventh Amendment and the

doctrine of Ex parte Young together create a relatively simple rule

of   state    immunity.        Basically,    prospective      injunctive   or

declaratory relief against a state is permitted--whatever its

financial side-effects--but retrospective relief in the form of a

money judgment in compensation for past wrongs--no matter how

small--is barred.”).        Scott argues on appeal that no wrongful act

can be attributed to him because all he did was respond to

Sternadel that her complaint was being forwarded to Jeffries.

However,     because   of   the   very   nature   of   the   relief   sought–-

reinstatement to her job as a parole officer in the TDCJ, which is

under Scott’s direction as Executive Director of TDCJ–-Scott is the

properly named party and is subject to the Young exception to

sovereign immunity.     Am. Bank & Trust Co. of Opelousas v. Dent, 982

F.2d 917, 921 (5th Cir. 1993).

                        III.      Qualified Immunity

     This court normally does not have appellate jurisdiction to

review the denial of a motion for summary judgment, except when it

is premised on a claim of qualified immunity.                 Lemoine v. New

Horizons Ranch & Ctr., 174 F.3d 629, 633 (5th Cir. 1999) (citing

Mitchell v. Forsyth, 472 U.S. 511 (1985)).             However, jurisdiction

in those instances is limited to a review of the district court’s

decision only to the extent it turns on an issue of law, and the

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court is precluded from conducting a review of the district court’s

findings of facts.         Id.      When a district court denies summary

judgment because of genuine issues of material fact, we do not have

jurisdiction over the conclusion that the fact issues are genuine,

but we do have jurisdiction over the conclusion that the fact

issues are material.           Id. at 633-34.          Thus, “this court ‘cannot

review whether the evidence could support a finding that particular

conduct occurred, but can take, as a given, the facts that the

district     court    assumed     when   it     denied      summary    judgment    and

determine     whether     those    facts       state    a   claim     under    clearly

established law.’”        Meyer v. Austin I.S.D., 161 F.3d 271, 274 (5th

Cir. 1998) (quoting Southard v. Texas Bd. of Criminal Justice, 114

F.3d 539, 548 (5th Cir. 1997)).

      “The    doctrine    of     qualified     immunity      serves    to     shield   a

government official from civil liability for damages based upon the

performance of discretionary functions if the official’s acts were

objectively reasonable in light of then clearly established law.”

Thompson v. Upshur County, TX, Nos. 99-41023 & 99-41024, 2001 WL

258032, *4 (5th Cir. Mar. 15, 2001).                   The analysis is two-fold:

First, the court must determine whether the plaintiff has alleged

the violation of a clearly established federal right, and second,

the   court    must     assess    whether       the    defendant’s      conduct    was

objectively reasonable in light of clearly established law. Id. at

*5; see also Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir.

1994).     A plaintiff must satisfy the following test in order to

                                           7
prove a First Amendment retaliation claim, as Sternadel alleges:

(1) the speech was on a matter of public concern; (2) the speech

was a substantial or motivating factor for the termination; but the

defendant may escape liability by showing that he would have

terminated the plaintiff in the absence of the protected speech.

Gerhart v. Hayes, 217 F.3d 320, 321 (5th Cir. 2000) (citing Mt.

Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

     On appeal, the defendants argue both that Sternadel has failed

to show the violation of a clearly established right and that their

actions were objectively reasonable.            We, however, agree with the

district court that genuine issues of material fact exist as to

whether the defendants’ motivations in upholding or participating

in   Sternadel’s    termination      were       based       on     unlawful   and

unconstitutional    retaliation    or    on     other     lawful    bases.    For

instance, defendant Jeffries claims that he fired Sternadel on the

basis of a good faith reliance on an internal investigative report;

however,    Sternadel   alleges   that     Jeffries       ignored      exculpatory

evidence.     Defendant   Ivey    argues      that   he    was   not   personally

involved in the investigation of Sternadel; however, Sternadel put

forth evidence from an assistant director that Ivey was both

personally   and   actively   involved     in    the      investigation.      But

see Gerhart, 217 F.3d at 322 (finding that summary judgment was

appropriate where defendants set forth undisputed evidence that

they would have fired plaintiff regardless of protected speech

activity); Mangieri, 29 F.3d at 1016 (finding that summary judgment

                                     8
was appropriate where there was general agreement concerning the

factual events).

     A denial of summary judgment was appropriate because there are

underlying facts in dispute that are material to whether the

defendants acted with objective reasonableness.   Mangieri, 29 F.3d

at 1016.    Because of this dispute, the defendants’ defense of

qualified immunity cannot prevail as a matter of law, and this

court is without jurisdiction to consider the interlocutory appeal.

Lampkin v. City of Nacogdoches, 7 F.3d 430, 436 (5th Cir. 1993).

                          IV.   Conclusion

     Therefore, we AFFIRM the judgment of the district court,

denying the motion to dismiss on the basis of Eleventh Amendment

immunity.   We DISMISS the interlocutory appeal based on qualified

immunity.




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