                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                           No. 00-41387



                          BENNIE J. BROWN,

                                               Plaintiff-Appellee,

                               versus

                  KILGORE JUNIOR COLLEGE, ET AL.,

                                                        Defendants,

     WILLIAM M. HOLDA, President, Kilgore College, individually
    and in official capacity; GERALD M. STANGLIN, Vice President
        of Instruction, Kilgore College, individually and in
                          official capacity,

                                             Defendants-Appellants.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                           (6:99-CV-464)
_________________________________________________________________
                           June 26, 2002

Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:*

      The principal issue in this interlocutory appeal from a

summary judgment denial of qualified immunity is whether there was

a causal connection between the claimed First Amendment protected

activity of Plaintiff Bennie J. Brown and the conduct of Defendants




*
     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this opinion should not be published and is not precedent except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.
William M. Holda and Gerald M. Stanglin, in their individual

capacities (Individual Defendants).          REVERSED and REMANDED.

                                      I.

     Brown    is   a   female   faculty    member   of   Kilgore   College,   a

community college district organized under the TEX. EDUC. CODE §

130.001 et seq. (Vernon 1991), and a unit of local government, TEX.

CIV. PRAC. & REM. CODE § 102.001(2) (Vernon 1997).            Brown has been a

member of the English faculty since 1969, holding teaching and

administrative positions primarily in the English and Reading

department.

     Holda has served as Kilgore President since 1996.               Prior to

then, he was Dean of Admissions and Registrar there for six years.

And, he was an instructor at Kilgore for 15 years before being made

Dean.

     In   February     1997,    Stanglin   was   hired   as    Kilgore’s   Vice

President of Instruction.        Prior to then coming to Kilgore, he was

a dean at Cedar Valley College in the Dallas County Community

College District.

     In 1990, Brown expressed an opinion on a matter involving a

Kilgore trustee’s son who, along with approximately 40 other

students, had failed an English exit test.           Then Kilgore President

Woodruff reinstated the students.          (He left office in early 1993.)

Brown felt the situation was resolved in an “unsatisfactory” way

and expressed this opinion to her dean and others at several

department meetings.




                                      2
     Shortly thereafter, Brown became active in the Texas Faculty

Association (TFA), a professional organization established for the

advancement of faculty concerns and issues.                 Among other things,

TFA lobbies on behalf of its members before the Texas legislature.

According to Brown, shortly after joining TFA, she and other

members were informed on a regular basis by unspecified individuals

that they “were on a hit list”; but, she concedes she never heard

this from either Holda or Stanglin. (In fact, Stanglin was not even

employed by Kilgore during this time period.)

     Brown states that, as members of TFA, she and others attended

several meetings of the Kilgore College Board of Trustees (some

time between 1990 and early 1993) to voice concerns over the size

of English classes and “some money that was to be part of our

salary”.   Brown   admits     she    did       not   verbalize   these   concerns;

instead,   Fran    Rathburn    and    Hugh       Wink   spoke    for   the    group.

According to Brown, the meetings were not “audience friendly” and

were “not really open”.

     A 1990 reorganization of Kilgore resulted in a change in job

titles and job responsibilities for Brown and others.                        At that

time, Brown was a Director of the Communications Division. Kilgore

eliminated all five Division Director positions and replaced them

with Department Chairs.         All the Division Directors, including

Brown, were retained as Department Chairs.                 Job responsibilities

also changed:      employment contracts were shortened; Department

Chair stipends were increased; and class loads were increased.




                                           3
      Because of these changes, Brown requested her department be

split, so that she became responsible only for English and Reading

classes.    And, she maintains she faced retaliation because of her

attempts     to    conduct    a   salary      study     following   the     1990

reorganization. It took six requests by Brown and two letters from

the   TFA    attorney    to   receive       requested   Board   minutes,    and

intervention by others to receive salary information on certain

teachers.    Brown is unsure, however, whether anyone other than TFA

members had difficulty receiving requested records during that time

frame.

      Brown also believes she suffered retaliation by then President

Woodruff (again, he left in 1993) because she, another faculty

member, and several computer science professors edited a TFA

newsletter.       During the early 1990s, when they were attempting a

budget study and “running up against a brick wall” in their

requests for records, board member Mata told Brown that President

Woodruff stated, after he read the newsletter: “Bennie Brown would

have hell to pay”.

      As of February 2000 (this action was filed in 1999), Brown was

not actively involved in the TFA, and there has been no substantial

TFA activity at Kilgore since January 1997.                  While Brown was

elected     president   the   last   time      elections    were    held,   the

organization met two or three times between 1997 and 2000.

      With respect to her right to assemble, Brown testified her

only recollection of problems occurred “in the early time”, from

1990 through 1993, and involved her “hearing that ... a college


                                        4
official had sent someone to spy on us[;] that another college

official referred to us as a union, and you better watch those

troublemakers and union rights people”.

     Brown did not know, however, if she ever heard Holda’s name

connected with any of the stories she heard regarding the TFA.

Brown also acknowledges: Stanglin has never criticized her for

speaking at college events on behalf of the TFA; and Kilgore

provided her with the opportunity to speak on behalf of the TFA

when the 1997 fall term began.         While Brown does not recall if she

actually spoke then, if she did, Holda did not criticize her for

it; and Brown does not recall Holda ever criticizing her for

speaking on behalf of the TFA at Kilgore.

     Dr. Thornton, who preceded Holda as President of Kilgore,

stated: during his tenure, board chairman Johnston directed that

Brown not be recommended for any promotion and stated that “Brown

was not going to be promoted to anything”.            Dr. Thornton believed

Brown to be the best qualified candidate for both the Dean of

Academic   Instruction      position    and    director   of     the   Workforce

Education Department.       Brown applied, and was rejected, for the

Dean position.      The Workforce position was filled without Brown’s

having an opportunity to apply for it.

     Elwyn     J.   Bone,    who   became      interim    Dean    of   Academic

Instruction,    following     Brown’s       application   in   1993    for   that

position, stated: she (Bone) retired in 1989, but returned to teach

at Kilgore’s request in 1993; when Brown applied for the Dean of

Academic Instruction position months prior to Bone’s returning to


                                        5
Kilgore, Bone recommended Brown for the position; the selection

process for the position “was tainted because of improper questions

asked of Ms. Brown and other applicants regarding their membership

with   the   [TFA]”,         which    required   that    the   entire       process   be

repeated; and Bone was asked to fill the Dean position on an

interim basis, applied for the position, and was given the job over

one other applicant (Brown did not reapply).

       In 1993 or 1994, Bone recommended Brown for the position of

director of the Workforce Education Department.                         Dr. Thorton

(again, Kilgore President before Holda) told Bone the Board “said

never to bring up Ms. Brown’s name in conjunction with a job

promotion”.

       In the Spring of 1997, Brown was a Department Chair at

Kilgore.         At   that    time,    Kilgore   instituted      another      internal

reorganization; all Department Chair positions were abolished and

replaced with Department Coordinator positions.                       Brown did not

apply for a Department Coordinator position, choosing instead to

apply for Dean of Business, Language Development and Technology

(BLDT Dean), a newly-created position supervising the division

created when the English and Reading department merged into a

primarily technical/vocational division.

       Stanglin, who had joined Kilgore shortly before, appointed a

selection        committee.          According   to     Stanglin,     the    selection

committee for the BLDT Dean acted contrary to his instructions and

prepared     a    written     recommendation      with    a    rank   order    of     the

individuals interviewed.              (Earlier published written procedures,


                                            6
however, approved by Holda, provided that the selection committee

would   rank   candidates   in   order    of   preference   and   make   a

recommendation.)   Brown was ranked third.      Linda Jarvis, selection

committee chair, stated the committee did not consider Brown’s sex,

age, or TFA activity.

     After discovering the top-ranked candidate was not qualified

for the position, Stanglin determined, based on conversations with

selection committee members, that the committee did not have the

same level of enthusiasm for the remaining candidates.        Therefore,

Stanglin decided to appoint a second selection committee and

reported this in a memorandum to the Kilgore faculty and staff.

     Following the disqualification of the top choice for BLDT

Dean, Jarvis voiced her personal recommendation of Brown in a

memorandum to Stanglin.       Jarvis stated: “It is my opinion, as

chairperson of the committee ..., that the committee believes that

Mrs. Brown is the best, most qualified person for the position of

dean, but they are afraid of what they do not know”.

     In support of Individual Defendants’ summary judgment motion,

Jarvis reiterated that the memorandum reflected her “personal

observations and opinions only.        It does not reflect, and was not

intended to reflect, the opinion, recommendation or conclusions of

the search committee”.      And, Jarvis stated that, contrary to the

allegations in Brown’s complaint, the first selection “committee

never prepared a report recommending that Ms. Brown receive the

appointment as [BLDT] Dean”.




                                   7
     For the second selection committee, Brown, Randy Lewellen

(ranked second, above Brown, by the first committee), and another

candidate were selected for interviews. Hugh Wink, committee chair

(identified supra as a TFA spokesperson to the Board at a meeting

in the early 1990s), stated the committee did not consider age,

sex, or Brown’s activity in the TFA, and did not question Brown

about any TFA involvement.

     Stanglin attended the meeting where the second committee

discussed each candidate’s strengths and weaknesses.                 Stanglin and

Holda then met with all three candidates.                    Stanglin selected

Lewellen as the new BLDT Dean.             (Lewellen is both younger than

Brown and male.)

     In support of Brown, another committee member, Jeannie Dykes,

stated:   Stanglin   directed    the       committee    to   place    nothing   in

writing; two committee members not listed by Brown as references

provided “scathingly negative input” about Brown; Dykes believed

the appointment of those two members had been previously objected

to by Brown; the committee failed to follow published hiring

procedures; the committee received a questionnaire from Kilgore

concerning Brown’s age, sex, and TFA affiliation; a memorandum from

Dykes (which is not a part of the record), detailing her concerns

with the second committee, went unanswered; and “Brown clearly was

the most qualified person for the job”.

     Based primarily upon not being selected in 1997 as BLDT Dean,

Brown filed   this   action     in   1999     against    Kilgore,     Holda,    and

Stanglin, with federal law claims for gender (Title VII) and age


                                       8
(ADEA) discrimination, equal protection violations (pursuant to 42

U.S.C.   §     1983),    and    First      Amendment     (speech       and    assembly)

retaliation (pursuant to § 1983).                In their individual capacities,

Holda and Stanglin were subject only to the § 1983 equal protection

and First Amendment claims.

     Kilgore, Holda, and Stanglin moved for summary judgment,

including, inter alia, Holda and Stanglin’s asserting qualified

immunity from the retaliation claims at issue on this appeal.                         The

magistrate judge’s report and recommendation that the motion be

denied   was    adopted    by     the      district    court.       On       motion   for

reconsideration, the district court dismissed the equal protection

claim because Brown conceded it was duplicative of her Title VII

and ADEA claims.

                                           II.

     This interlocutory appeal by Holda and Stanglin concerns

qualified immunity, in their individual capacities, from the First

Amendment retaliation claims.               In disputing Holda and Stanglin’s

being entitled to such immunity, Brown contends: (1) we lack

jurisdiction because Appellants are challenging the sufficiency of

the evidence;      and    (2)   in    the       alternative,    such     immunity     was

properly     denied     because      she    asserted     a     clearly       established

constitutional violation.

                                            A.

     Jurisdiction over an interlocutory appeal from the denial of

summary judgment seeking qualified immunity is limited to “issues

of law and ‘concern[s] only [the] application of established legal


                                            9
principles’”. Turner v. Houma Mun. Fire & Police Civ. Serv. Bd.,

229 F.3d 478, 482 (5th Cir. 2000) (alteration in original; quoting

Jones v. Collins, 132 F.3d 1048, 1051 (5th Cir. 1998)).              For a

denial based on material fact issues, we may not “review the ...

finding that particular factual issues are ‘genuine’[, but we do]

have jurisdiction to review the ... determination that certain

facts   (or   factual   disputes)   are   ‘material’   to   the   issue   of

qualified immunity”.      Thompson v. Upshur County, Tex., 245 F.3d

447, 455-56 (5th Cir. 2001); see also Gerhart v. Hayes, 201 F.3d

646, 648 n.2, rev’d in part on reh’g, 217 F.3d 320 (5th Cir.)

(deleting and substituting Part IV concerning whether speech was a

matter of public concern), cert. denied, 121 S. Ct. 573 (2000);

Colston v. Barnhart, 146 F.3d 282, 284-85 (5th Cir.) (en banc),

cert. denied, 525 U.S. 1054 (1998). We must also consider “whether

the district court applied the correct legal standard on summary

judgment”. Gerhart, 201 F.3d at 648-49.

       Brown contends we lack jurisdiction, based on her assertion

that Holda and Stanglin sought summary judgment premised on the

insufficiency of Brown’s evidence.        “[W]e possess no jurisdiction

over a claim that a plaintiff has not presented enough evidence to

prove that the plaintiff’s version of events actually occurred”.

Burge v. Parish of St. Tammany, 187 F.3d 452, 479 (5th Cir. 1999).

Holda and Stanglin respond that, instead, they present an issue of

law:    “Brown has failed to establish that any conduct of Holda or

Stanglin violated a clearly established constitutional right”.




                                    10
       We have jurisdiction to review the issues of law presented by

this appeal: whether the district court applied the correct legal

standard;   and    whether    Holda    or   Stanglin   violated         a   clearly

established right, including, by necessity, whether Brown’s speech

constituted a matter of public concern.

                                       B.

       We review de novo the denial of summary judgment seeking

qualified   immunity,    viewing      the   evidence    in   the    light      most

favorable to the nonmovant (Brown).            See, e.g., Lukan v. N. Forest

Indep. Sch. Dist., 183 F.3d 342, 345 (5th Cir. 1999), cert. denied,

529 U.S. 1019 (2000); Hale v. Townley, 45 F.3d 914, 917 (5th Cir.

1995).

       To determine whether a government official is entitled to

qualified    immunity,   we    apply     the    well-established,           two-step

analysis:    whether the official violated a clearly established

constitutional right; and, even if he did, whether his conduct was

objectively reasonable.        See, e.g., Lukan, 183 F.3d at 345-46.

Accordingly, prerequisite to such analysis on summary judgment is

that Brown must show the violation of a clearly established right:

she must allege, and show facts to support, every element of her

First Amendment retaliation claims.

       Such a claim requires showing each of the following elements:

the employee suffered an adverse employment action; her speech

involved a matter of public concern; her interest in commenting on

such   matters    outweighs   the     defendant’s    interest      in   promoting

efficiency; and the speech motivated the adverse employment action.


                                       11
Id. at 346.   If plaintiff makes this showing, the defendant must

show that, regardless of the protected conduct, it would have taken

the same action against plaintiff.       Id.

     Holda and Stanglin contend:        whatever speech Brown made, it

was not on a matter of public concern; and neither Holda nor

Stanglin   participated     in   conduct       which   violated     Brown’s

constitutional rights. Brown maintains: it is sufficient that she

simply   pleaded   a   constitutional   violation;     and   her   evidence

established that “the unlawful motivation originating with [the

Board] was implemented” by Holda and Stanglin.

     The parties do not dispute that Brown suffered an adverse

employment action. And, Individual Defendants do not contest that,

if Brown spoke on a matter of public concern, her speech concerns

outweigh Kilgore’s efficiency concerns.           Accordingly, we first

examine whether Brown’s speech was on a matter of public concern;

if it was, we determine whether either Holda or Stanglin violated

her constitutional (First Amendment) rights.            Finally, in the

alternative, we will determine whether Holda’s and Stanglin’s

conduct was objectively reasonable.

                                   1.

     “Whether the speech at issue relates to a matter of public

concern is a question of law to be resolved by the court.”

Tompkins v. Vickers, 26 F.3d 603, 606 (5th Cir. 1994) (citing

Rankin v. McPherson, 483 U.S. 378, 386 n. 9 (1987)).          “[T]he mere

fact that the topic of the employee’s speech was one in which the

public might or would have had a great interest is of little


                                   12
moment”. Terrell v. Univ. of Tex. Sys. Police, 792 F.2d 1360, 1362

(5th Cir. 1986), cert. denied, 479 U.S. 1064 (1987). “Speech rises

to the level of public concern when an individual speaks primarily

as a citizen rather than as an employee.”          Bradshaw v. Pittsburg

Indep. Sch. Dist., 207 F.3d 814, 816 (5th Cir. 2000) (citing

Thompson v. City of Starkville, 901 F.2d 456, 461 (5th Cir. 1990)).

“[T]he content, form and context of a given statement, as revealed

by the entire record” must be evaluated.           Id. at 817 (quoting

Denton v. Morgan, 136 F.3d 1038, 1043 (5th Cir. 1998)).

       Holda and Stanglin contend Brown’s “speech” was neither by

her nor on matters of public concern.        The only speech Brown can

specifically point to occurred in 1990, involving the reinstatement

of students following an exam, when Holda was not in a decision-

making position and Stanglin was not even employed by Kilgore.

With respect to speech involving the TFA, although Brown attended

Board meetings at which TFA members spoke, Brown did not speak.

Her   other   alleged   First    Amendment   activities      involved   (1)

difficulty getting Board minutes for the salary study in 1990 (when

neither Holda nor Stanglin were in decision-making positions) and

(2) speaking in favor of TFA membership during the opening session

at the start of a school year (although she can not remember

exactly when this occurred).

      Brown contends, however, that organizing, and activity in,

faculty organizations, including requests for salary information

and   questioning   salary      practices,   are   clearly     established

constitutional rights.    See Allaire v. Rogers, 658 F.2d 1055, 1059


                                    13
(5th Cir. Unit A Oct. 1981), cert. denied, 456 U.S. 928 (1982)

(members    of        college    faculty    organizations     requesting   salary

information); Goss v. San Jacinto Jr. Coll., 588 F.2d 96, 99 (5th

Cir. 1979) (efforts to organize local chapter of National Faculty

Association); Lewis v. Spencer, 468 F.2d 553, 557 (5th Cir. 1972)

(tenure advocacy and attempts to organize chapter of National

Faculty Association).            In addition, Brown contends other courts

have found faculty member expression on student grading issues

protected by the First Amendment. See, e.g., Parate v. Isibor, 868

F.2d 821, 828 (6th Cir. 1989); Hesse v. Bd. of Educ. of Township

High Sch. Dist. No. 211, Cook County, Ill., 848 F.2d 748, 751 (7th

Cir. 1988), cert. denied, 489 U.S. 1015 (1989).

     Brown is incorrect that simply pleading a constitutional

violation is sufficient to defeat a qualified immunity summary

judgment.    She must also produce affirmative evidence of specific

facts to support each element of her First Amendment retaliation

claims.    See Schaefer v. Gulf Coast Reg’l Blood Ctr., 10 F.3d 327,

330 (5th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 256-57 (1986)); FED. R. CIV. P. 56(c).

     While we doubt Brown’s vague references to “speech” are

sufficient       to     defeat    summary    judgment,   we    will   assume   (as

Individual Defendants seem to concede in their reply brief) that

her comments regarding grading policies and her advocacy in TFA

during the early 1990s amount to speech on a matter of public

concern. She has, however, failed to identify any such speech that




                                            14
occurred after Holda and Stanglin were placed in decision-making

positions.

                                       2.

       The fourth element of a First Amendment retaliation claim

requires     showing     plaintiff’s    speech   motivated    the   adverse

employment action.       See Lukan, 183 F.3d at 346.        Brown must show

her speech in the early 1990s was a “substantial or motivating

factor in the” decision, years later (1997), by Holda and Stanglin

to make Lewellen BLDT Dean, instead of her.           Gerhart, 217 F.3d at

321.    Further, to be liable under § 1983, an individual defendant

must     have    personally    participated      in   the    constitutional

deprivation.       Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir.

1979).

       Concerning the violation of a clearly established right, the

magistrate      judge   identified   Brown’s   association   with   TFA   and

improper questioning that occurred during her 1993 application for

Academic Dean.      These events occurred when Stanglin was not even

employed by Kilgore and when Holda was not in a decision-making

role for the Dean position and are irrelevant to their individual

liability without some proof that Holda and/or Stanglin were

influenced by that conduct and, as a result, in 1997 made the

decision adverse to Brown.

       Brown further contends:       in 1997, Stanglin changed the rules

with regard to BLDT Dean selection procedures by dismissing the

first selection committee for submitting written recommendations

(this is discussed infra); and Holda and Stanglin are responsible


                                       15
for the second committee’s choosing Lewellen over her. This is not

reflected in the summary judgment record.

     Instead, the only evidence in the record is:                  Brown’s speech

was not considered in the 1997 decision to make Lewellen BLDT Dean,

instead of her; Brown was ranked third (behind Lewellen) by the

first selection committee; and Brown admits neither Holda nor

Stanlgin    has     ever   criticized        her    for   any    First   Amendment

activities.       And, Brown concedes the TFA at Kilgore has, for all

practical purposes, been inactive since Holda became President and

Stanglin joined Kilgore.

     Accordingly, Brown has produced no evidence that her speech

motivated the conduct of Holda and Stanglin.                    Restated, each is

entitled to qualified immunity, in their individual capacities.

                                        3.

     In the alternative, even if we were to find the decision to

select Lewellen, instead of Brown, violated a clearly established

right, there is sufficient evidence to show Holda and Stanglin

acted in an objectively reasonable manner.                See Lukan, 183 F.3d at

346. Along this line, there are no genuine issues of material fact

precluding our review of this subpart for qualified immunity

analysis.

     In    seeking    to   show   Holda       and    Stanglin’s     actions   were

unreasonable, Brown:       wrongly asserts the first BLDT Dean search

committee recommended Brown (again, she was third); attempts to

impute actions by individual members of the second search committee

to Holda and Stanglin; and discusses events that preceded Holda’s


                                        16
tenure as President, as if they occurred during this opportunity

for   promotion.          We    are   required     to   determine    objective

reasonableness based upon a version of the facts most favorable to

the plaintiff, see Lampkin v. City of Nacogdoches, 7 F.3d 430, 435

(5th Cir. 1993), cert. denied, 511 U.S. 1019 (1994); we do so,

nevertheless, based on the evidence in the summary judgment record.

      As   with     our   earlier     determination     regarding   Individual

Defendants’ conduct, Brown has failed to show Holda and Stanglin

took any action that was objectively unreasonable with respect to

their decision to select Lewellen over Brown.             While it is unclear

why Stanglin instructed the first selection committee contrary to

the published procedures, this issue, even if Brown could show the

conduct was objectively unreasonable, is not material to Individual

Defendants’ entitlement to qualified immunity.             In other words, it

had nothing to do either with the selection by the first committee

or with it being necessary to have a second committee because the

first person selected was found not qualified.

      Brown was considered by both committees and was even ranked

below Lewellen by the first committee (the one Stanglin dismissed);

Stanglin attended a meeting of the second selection committee to

hear the strengths and weaknesses of each candidate; and Holda and

Stanglin interviewed the candidates who were recommended by the

committee, including Brown. Stanglin recommended Lewellen because,

inter alia:       his experience in workforce development, technical

education,    and    contract    training    was   superior   to    Brown;   and

Lewellen had strong communication, leadership, and team building


                                        17
skills. There is no action that either Holda or Stanglin took that

was objectively unreasonable in their decision to select Lewellen

rather than Brown.

                              III.

     For the foregoing reasons, we REVERSE the denial of qualified

immunity for Holda and Stanglin, in their individual capacities,

from the First Amendment retaliation claims and REMAND for further

proceedings consistent with this opinion.

                                            REVERSED and REMANDED




                                18
