                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-3098
WANDA L. ASHMAN,
                                            Plaintiff-Appellant,
                               v.

RICHARD BARROWS, JANINE JENSEN, and BOARD OF
REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM,
                                Defendants-Appellees.
                         ____________
           Appeal from the United States District Court
              for the Western District of Wisconsin.
             No. 04 C 829—John C. Shabaz, Judge.
                         ____________
  ARGUED JANUARY 12, 2006—DECIDED FEBRUARY 23, 2006
                     ____________


  Before FLAUM, Chief Judge, and BAUER and EVANS,
Circuit Judges.
  EVANS, Circuit Judge. After Wanda Ashman spent 14
years as a “limited term employee” (LTE) at the University
of Wisconsin in Madison, she convinced her superiors that
her job should be made permanent and should include the
benefits which go with permanent employment. A hiring
process was put in place, apparently with the intent that
Ashman be hired as a part-time permanent employee. The
process broke down, however, because at about the same
time that a job was being created for her, Ashman took her
fight for better conditions for LTEs to the chancellor of the
2                                               No. 05-3098

university and to a local newspaper. The result was that
someone else got the newly created, now-permanent job.
Ashman sued under 42 U.S.C. § 1983, contending that the
defendants retaliated against her for speaking out about
the issue of the university’s treatment of LTEs, in violation
of her First Amendment rights. The defendants moved for
summary judgment and the district court granted the
motion. Today we resolve Ashman’s appeal of that decision.
  Ashman’s employment with the College of Agriculture
and Life Sciences (CALS) at the university began in 1986.
In 1992, she began working with a computer program called
the Degree Automated Reporting System (DARS). She was
also responsible for maintaining the department’s Web site.
It was in September 2000 that Ashman talked with her
supervisors—defendants Richard Barrows, the associate
dean of the CALS, and Janine Jensen, the student services
coordinator of the Department of Academic Student Affairs
for CALS—claiming that her job was undervalued and
undercompensated. She had not received a raise in her
hourly wage for over 8 years, and she was an LTE for 14
years. Barrows and Jensen agreed to convert her position to
a permanent part-time position. To comply with hiring
procedures, they had to develop a job description and post
the position for contractual transfers. Ashman gave them a
copy of her resumé, a description of the essential responsi-
bilities of her job, and a list of qualifications or skills
needed in the job. She estimated that 50 percent of her time
was with the degree reporting system and 50 percent with
webmaster duties.
  Apparently, the whole point of the recruitment process
was to create a permanent position which would reflect
Ashman’s job duties and then to give her the job. She
acknowledges that this purpose may have been a question-
able practice under the state civil service rules, but, she
says, we should not hold that against her. Ashman’s
No. 05-3098                                                3

position was reclassified to Information Services (IS)
Resources Technician and “posted” on April 18, 2001.
  At about this time, the plan to give Ashman the job
started to unravel. On April 3, 2001, Ashman met with
Chancellor John Wiley and members of the Student and
Labor Action Coalition to discuss the plight of LTEs at the
university and possible legislation to eliminate the oxymo-
ron of long-time, limited term positions and to make the
positions permanent. Ashman discussed her view that the
university misused LTEs in general.
  The next day, Ashman told Barrows and Jensen about the
meeting with Chancellor Wiley. She told them that even
though her position was going to be made permanent, she
wanted to help other LTEs. She also told them that it was
possible that there would be an article in Isthmus, a local
newspaper, about the topics covered in the meeting; she
warned Barrows and Jensen that she was not sure whether
the article would be factual or inflammatory. Also, in May,
Ashman met with members of the Coalition and Wisconsin
State Representative Jean Hundertmark regarding the
university’s use of LTEs.
  On June 22, the Isthmus article was published. It stated,
“Wanda Ashman is fed up. For nearly nine years she has
been employed ‘in training’ as a computer code writer for
the UW-Madison College of Agriculture” and that the UW
was being “dishonest and irresponsible by not classifying
her and others like her as permanent employees.” The
article pointed out that LTEs do not receive benefits such as
health care, paid vacation or sick days, and retirement
savings.
  After the article was published, Jensen told one of
Ashman’s coworkers, Sue Gisler, that Barrows was “really
furious and angry” about the article, a fact Gisler also
observed for herself. Gisler heard Barrows complain at staff
meetings that Ashman had “made the college look bad.”
4                                               No. 05-3098

Another of Ashman’s coworkers, Sue Brusveen, also heard
Barrows say he was not happy about the story in Isthmus.
Both Gisler and Brusveen said that Barrows treated
Ashman differently after she called attention to the LTE
issue. Both women concluded that Ashman did not get the
position as IS Resources Technician because of her com-
plaints.
   On June 19, Barrows and Jensen cancelled recruitment
for the position. The reason they gave for their action was
that they were going to adopt a proposal from the Depart-
ment of Information Technology (DoIT) for a data base Web
site. This, they said, would require revamping the position.
Ashman, however, contends that the change would make
little difference in job duties because DoIT would set up the
data base and the technician would have little to do but
update it. Barrows and Jensen also changed the job descrip-
tion; the percentages of time spent on the duties of the job
were changed—and in a way which did not make sense to
Ashman. Ashman informed Barrows of her concerns about
the new job description. Nevertheless, the revised job
description was forwarded to Human Resources to be used
as a basis for developing an examination for the position.
  In July, Barrows sent a memo to the Human Resource
office asking that both he and Jensen be removed from the
hiring process for the IS Resources Technician position.
There is evidence, however, that Jensen did not withdraw
from the hiring process but participated in the development
of the examination. The degree of her participation is
disputed. Ultimately, the examination was prepared and
consisted simply of an “objective inventory questionnaire,”
in which applicants were asked whether they possessed
certain kinds of knowledge, skills, and experience. Ashman
ranked 20th out of 34 persons taking the exam and was not
among the top 10 candidates, who were invited to interview
for the position. It is Ashman’s view that the exam did not
No. 05-3098                                                 5

reflect the duties of the job she had been performing for 8
years.
  Nevertheless, Ashman’s employment was terminated and
another woman was hired who had no experience with the
DARS system, which continued to be part of the job. The
new hire was required to attend special training courses to
learn the program.
   Ashman’s claim that she was retaliated against in
violation of her rights under the First Amendment requires
first a finding that her speech was constitutionally pro-
tected. To be protected, an employee’s speech must be that
of a citizen on a matter of public concern. Connick v. Myers,
461 U.S. 138 (1983); Pickering v. Bd. of Educ. of Twp. High
Sch. Dist. 205, 391 U.S. 563 (1968). It is uncontested in this
case that Ashman’s speech—the alleged misuse of LTEs by
the university—was a matter of public concern.
  The next step requires that Ashman show that her speech
was a “motivating factor”—i.e., that it “played a substantial
part”—in her rejection and termination. Spiegla v. Hull,
371 F.3d 928, 941-943 (7th Cir. 2004). If she succeeds, the
employer can still prevail if it can show either that its
interest in efficiently providing services outweighs the
employee’s rights or that it would have taken the adverse
employment action even in the absence of the protected
speech. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274 (1977); Gustafson v. Jones, 290 F.3d 895 (7th
Cir. 2002). The questions before us involve only whether
Ashman’s speech played a substantial part in the employ-
ment decision and, if so, whether the university would have
taken the same actions without the speech. The fundamen-
tal issue, however, is whether, on the facts of this case,
these questions can be resolved on summary judgment.
  We review summary judgment decisions de novo. To
prevail on her appeal, Ashman must convince us that there
is a genuine issue of material fact as to each question.
6                                                No. 05-3098

McGreal v. Ostrov, 368 F.3d 657 (7th Cir. 2004). We
construe all facts in the light most favorable to Ashman, the
party opposing summary judgment, and we draw all
reasonable inferences in her favor. Id. We are particularly
leery of resolving issues involving a state of mind on
summary judgment. Alexander v. Wisconsin Dept. of Health
& Family Servs., 263 F.3d 673 (7th Cir. 2001). In fact, in
McGreal, 368 F.3d at 677, we quoted Pfizer, Inc. v. Interna-
tional Rectifier Corp., 538 F.2d 180, 185 (8th Cir. 1976),
which stated that “[s]ummary judgment is notoriously
inappropriate for determination of claims in which issues of
intent, good faith and other subjective feelings play domi-
nant roles.” See also Stumph v. Thomas & Skinner, Inc.,
770 F.2d 93 (7th Cir. 1985).
   It seems clear that this is a case in which summary
judgment is inappropriate. The record is replete with
incidents which are open to interpretation. It is easy to
infer that starting in the fall of 2001, Ashman’s dissatisfac-
tion with being a long-term, limited term employee bubbled
to the surface. She complained to her supervisors, who at
first seemed sympathetic and agreed to try to fix the
situation by creating a permanent, part-time job for her.
Ashman, however, also took her dissatisfaction with the
LTE situation to others: notably, the chancellor and a
newspaper. Much was made at argument about the timing
of the events in the case and particularly the Isthmus
article in relation to the significant employment actions.
The undisputed facts show that the article appeared on
June 22, 3 days after Barrows and Jensen had cancelled the
recruitment for the new position—on June 19. However, we
do not find the timing of these two events to be the only
relevant facts. Our review of the record convinces us that
before the 19th, Ashman had exercised her free speech
rights to a degree which would allow a reasonable jury to
conclude that her speech was a substantial factor in the
defendants’ actions. She had met with the chancellor and
No. 05-3098                                                  7

the Student and Labor Action Coalition, and she told
Barrows and Jensen about the meeting. She also told them
at that time that there might be an article about the
meeting in Isthmus. She indicated that the article might be
inflammatory. She had also met with a state lawmaker on
the issue.
  It is also noteworthy that relevant events regarding the
job occurred after the Isthmus article appeared. The
situation continued to deteriorate. For one thing, the
process of revamping the duties of the new position contin-
ued after the 22nd. In addition, it was not until July that
Barrows asked that he and Jensen be taken out of the
hiring process. Also, significantly, there are the observa-
tions of Ashman’s coworkers that Barrows was very angry
with her. We are not saying that a jury must conclude that
these incidents were a substantial factor in the employment
decision. What we are saying, however, is that whether they
were or not is a question for a jury, not a judge on summary
judgment.
  It is also a jury question whether Ashman would have
been eliminated from consideration even had she been less
vocal about her complaints. A jury could look to the fact
that Ashman performed to the defendants’ satisfaction for
many years. Otherwise, a reasonable jury might wonder
why Barrows and Jensen would be willing to create a
position for her. And after setting out to create the position,
why did they change course? Are the reasons they give
convincing? The record contains no indication that Ashman
was incompetent and, in fact, she continues to be employed
by the university. What happened in regard to Ashman’s
employment by CALS is not something which can be
determined on the record as a matter of law. There are far
too many unanswered questions about motivation and
intent.
8                                            No. 05-3098

   Accordingly, the judgment of the district court
is REVERSED and the case is REMANDED for further proceed-
ings.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—2-23-06
