REVISED, February 2, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-41192 _____________________

ETHEL JONES,

Plaintiff-Appellee,

v.

GARY COLLINS, Superintendent of Texarkana Independent School District

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas _________________________________________________________________ January 9, 1998 Before KING, DUHÉ, and WIENER, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Gary Collins, the superintendent of

Texarkana Independent School District, appeals the district

court’s partial denial of his motion for summary judgment on the

ground that a fact issue exists as to whether he possesses

qualified immunity from liability for plaintiff-appellee Ethel

Jones’s claim, asserted under

, that Collins

violated her First Amendment rights. Because we find that the

evidence in the summary judgment record, construed in the light

most favorable to Jones, indicates that Collins did not violate

Jones’s First Amendment right to free expression, we reverse the district court’s order denying Collins’s motion for summary

judgment on his defense of qualified immunity and remand for

entry of judgment granting this portion of the motion.

I. FACTS & PROCEDURAL BACKGROUND

This case arises out of the transfer of plaintiff-appellee

Ethel Jones from her position as principal of Dunbar Elementary

School (“Dunbar”) to the position of assistant principal of

Westlawn Elementary School (“Westlawn”) in July 1993. Defendant-

appellant Gary Collins, the superintendent of Texarkana

Independent School District (“TISD”), recommended this transfer,

and the TISD Board of Trustees (the “Board”) approved it.

Jones served as Dunbar’s principal from the 1986-87 school

year through the 1992-93 school year. Her performance

evaluations for the 1987-88 through the 1990-91 school years

reflect that Collins gave Jones ratings of “clearly outstanding”

or “exceeds expectations” in most of the evaluation categories.

On February 22, 1992, Jones attended a Board retreat at

which Board members discussed possible locations for a proposed

alternative education program for the school district to cope

with the educational needs of emotionally disturbed and at-risk

students. Jones later asked Collins if Dunbar was a potential

site for the alternative education program. Collins responded

that this was possible because Dunbar had extra rooms available

that could be allocated to the program. Collins contends that he

discussed the possibility of Dunbar serving as the site of the

alternative education program with no one other than Jones.

2 In May or June of 1992, after Jones’s conversation with

Collins regarding the location of the alternative education

program, representatives from the community appeared at a Board

meeting and voiced opposition to the prospect of placing the

alternative education program at Dunbar. The Board president

informed the parents that the Board did not intend to place the

alternative education program at Dunbar. Collins surmised that

the parents must have received the information regarding the

possibility of placing the program at Dunbar from Jones because

he had discussed the matter with no one else. When confronted by

Collins, Jones denied leaking information to the community.

In Jones’s 1991-92 employment evaluation, Collins stated

that Jones “[i]sn’t supportive of controversial approaches [and]

doesn’t like to be in [the] line of fire on any decision.” In an

attachment to the evaluation, Collins explained that, after

discussing with Jones the possibility of placing the alternative

education program at Dunbar, various members of the faculty and

parents of Dunbar students complained about locating the program

at Dunbar. The attachment also stated the following with regard

to the alternative education program’s location:

The Board of Trustees, when making decisions as to the utilization of facilities, makes their determination in the best interest of all students in this district. Before that decision is made, options will be discussed, alternatives weighed, and a rational decision arrived at by consensus. Up until that event occurs, you are to support the administration and Board of Trustees in their attempts to determine the best use of facilities for the students and instructional program of this district. You are not to work behind our backs in an effort to salvage what you consider the

3 most important use of a facility nor use other individuals to carry out your point of view.

Collins recommended that Jones’s contract be renewed for another

year.

In Jones’s evaluation for the 1992-93 school year, Collins

rated Jones’s performance in many evaluation categories as

“unsatisfactory” and recommended that the district not renew her

contract. In a memorandum accompanying the evaluation form,

Collins listed a number of alleged deficiencies in Jones’s

performance, and discussed in particular her alleged

“gamesmanship” in inciting unrest in the community regarding

district policy affecting Dunbar. The evaluation states that

Jones’s “community involvement consisted of creating controversy

over items [she] did not want on the Dunbar campus.” The

evaluation also reiterated Collins’s belief that Jones had spoken

negatively with members of the community regarding the

possibility of placing the alternative education program on the

Dunbar campus.

Jones’s contract with TISD covering the 1992-93 and 1993-94

school years provided that Jones could be transferred between

administrative positions within the district at the sole

discretion of the superintendent so long as her salary was not

reduced as a result of the transfer. On July 21, 1993, Collins

attempted to transfer Jones to a teaching position. However,

counsel for the school district informed him that, under the

terms of the contract then in effect between Jones and TISD,

Collins could not transfer Jones from an administrative position

4 to a teaching position. Collins thereafter reassigned Jones to

the position of assistant principal of Westlawn.

Jones exhausted her administrative remedies and, on

September 29, 1995, filed suit against TISD and Collins both in

his individual capacity and his official capacity as

superintendent of TISD (collectively “Defendants”). Jones

alleged various violations of the U.S. Constitution, including

claims that her transfer deprived her of property and liberty

interests without due process and a claim that her reassignment

constituted retaliation for exercise of her First Amendment right

to free speech. Jones also asserted parallel claims under the

Texas Constitution. Defendants answered and affirmatively

pleaded the defense of qualified immunity on behalf of Collins in

his individual capacity. Defendants moved for summary judgment

on all claims, including Collins’s claim of qualified immunity.

The district court granted Defendants’ motion for summary

judgment except as to Jones’s First Amendment retaliation claim

and Collins’s defense of qualified immunity. Collins appeals the

district court’s refusal to grant summary judgment on Jones’s

First Amendment retaliation claim on grounds of qualified

immunity.

II. APPELLATE JURISDICTION

Although Jones has not argued that this court lacks

jurisdiction over the instant appeal, we nonetheless address the

issue sua sponte. See Joseph v. City of New Orleans,

(5th Cir. 1997); Pemberton v. State Farm Mut. Auto. Ins.

5 Co.,

(5th Cir. 1993). The Supreme Court has

held that “[a]ppeals from district court orders denying summary

judgment on the basis of qualified immunity are immediately

appealable under the collateral order doctrine, when based on an

issue of law.” Cantu v. Rocha,

(5th Cir. 1996)

(citing Mitchell v. Forsyth,

(1985)). In this

context, an appeal is based on “issues of law” if the issues it

raises “concern only application of established legal principles,

such as whether an official’s conduct was objectively reasonable

in light of clearly established law, to a given (for purposes of

appeal) set of facts.” See

(citing Johnson v. Jones,

(1995). However, if the appeal involves a matter

of evidentiary sufficiency, i.e., if the party moving for summary

judgment merely disputes the district court’s determination that

the nonmoving party may be able to prove at trial a fact that is

material to the appellant’s entitlement to qualified immunity,

then the district court’s denial of summary judgment is not

immediately appealable. See

Collins contends on appeal that the summary judgment

evidence, viewed in the light most favorable to Jones, indicates

that he did not violate Jones’s constitutional rights. He does

not contend that the district court erroneously determined that

the summary judgment record indicates that disputes exist as to

factual issues material to Jones’s claim. We therefore possess

jurisdiction over Collins’s appeal and proceed to its merits.

6 III. STANDARD OF REVIEW

“This court reviews de novo the denial of a public

official’s motion for summary judgment predicated on qualified

immunity.” Southard v. Texas Bd. of Criminal Justice,

, 548 (5th Cir. 1997); see also Johnston v. City of Houston,

(5th Cir. 1994). We therefore apply the same

criteria used by the district court in the first instance. See

Texas Manufactured Housing Ass’n v. City of Nederland,

(5th Cir. 1996), cert. denied,

(1997).

Summary judgment is proper only “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(c); see also

Celotex Corp. v. Catrett,

(1986).

IV. ANALYSIS

While the nature of Jones’s First Amendment claim is not

altogether clear from her pleadings at the district court level

and her brief on appeal, her claim appears to be that Collins

retaliated against her based upon his perception that she spoke

negatively to members of the local community about the prospect

of placing the TISD alternative education program at Dunbar.

With this understanding of the claim in mind, we turn to the

legal standard applicable in evaluating Collins’s entitlement to

qualified immunity from liability based on the claim.

7 A. Qualified Immunity Standard

A determination of whether a public official is entitled to

qualified immunity from liability under § 1983 potentially

involves a two-step analysis. First, if the official’s conduct

did not violate a clearly established constitutional right, the

official is entitled to qualified immunity. See Nerren v.

Livingston Police Dep’t,

(5th Cir. 1996). That

is, in order for immunity not to attach, the official’s conduct

must have violated a right recognized under current

constitutional law, and that right must have been clearly

established at the time of the official’s conduct. See Siegert

v. Gilley,

(1991) (“Once a defendant pleads

a defense of qualified immunity, on summary judgment, the judge

appropriately may determine, not only the currently applicable

law, but whether the law was clearly established at the time an

action occurred. . . . A necessary concomitant to the

determination of whether the constitutional right asserted by a

plaintiff is clearly established at the time the defendant acted

is the determination of whether the plaintiff has asserted a

violation of a constitutional right at all.” (internal quotation

marks and alteration omitted)). Second, even if the official’s

conduct violated a clearly established constitutional right, the

official is nonetheless entitled to qualified immunity if his

conduct was objectively reasonable. See Nerren,

.

We need not reach the second step of this analysis because the

summary judgment evidence, construed in the light most favorable

8 to Jones, indicates that Collins did not violate Jones’s First

Amendment right to free expression.

B. First Amendment Law

A state may not deny an individual public employment or

benefits related thereto based on the individual’s exercise of

her First Amendment right to free expression even when the

individual lacks a liberty or property interest in the employment

or related benefit. See Rankin v. McPherson,

, 383-

84 (1987) (“Even though McPherson was merely a probationary

employee, and even if she could have been discharged for any

reason or for no reason at all, she may nonetheless be entitled

to reinstatement if she was discharged for exercising her

constitutional right to freedom of expression.”); Connick v.

Myers,

(1983); Pickering v. Board of Educ.,

(1968); Thompson v. City of Starkville,

(5th Cir. 1990). However, a government’s interest

in insuring that its agencies perform the tasks assigned to them

by law in the most efficient manner possible is substantial and

in certain circumstances justifies placing restrictions upon

public employees’ freedom of expression. See Waters v.

Churchill,

(1994) (plurality opinion)

(O’Connor, J.) (“The government cannot restrict the speech of the

public at large just in the name of efficiency. But where the

government is employing someone for the very purpose of

effectively achieving its goals, such restrictions may well be

appropriate.”).

9 In light of the competing interests of government employees

in free expression and the government in efficiency of its

operations, the Supreme Court has held that the First Amendment

precludes retaliation against a public employee based upon her

expression only if that expression satisfies two criteria.

First, the expression must relate to a matter of public concern.

See Connick,

; Kinsey v. Salado Indep. Sch. Dist.,

(5th Cir. 1992). Second, the employee’s

interest in “commenting upon matters of public concern” must

outweigh the public employer’s interest “in promoting the

efficiency of the public services it performs through its

employees.” Pickering,

; see also Kinsey,

. If a public employee establishes that her

expression is protected by meeting the above two criteria, she

must still prove that her expression caused the retaliatory act

of which she complains in order to establish a violation of the

First Amendment. See Kinsey,

.

In this case, Jones contends that she never made any public

comment about the prospect of placing the alternative education

program on the Dunbar campus and that Jones retaliated against

her based upon his perception that she spoke out negatively

regarding this matter. Assuming for the sake of argument that

Jones’s expression as perceived by Collins would have been

subject to constitutional protection (i.e., the negative comments

perceived by Collins related to a matter of public concern and

Jones’s interest in making them outweighed TISD’s interest in

10 efficiently providing educational services), retaliation based on

this perception, in the absence of any actual expression by Jones

that is subject to First Amendment protection, does not

constitute a constitutional violation.

In Barkoo v. Melby,

(7th Cir. 1990), the

Seventh Circuit addressed a factual scenario analogous to the one

at issue here: the plaintiff alleged that she was constructively

discharged from her position as a communications operator for the

Village of Skokie Police Department based upon her supervisors’

erroneous belief that she had discussed a matter relating to the

department with local media. See

. The court

concluded that the plaintiff could not establish a violation of

her First Amendment right to free expression because she had not

actually engaged in any protected First Amendment activity. See

. The court observed:

To the extent Barkoo alleges that her employers retaliated against her because they thought she was engaged in First Amendment protected speech on an issue of public concern, we reject the notion that this allegation brings her claim within the requirements of § 1983. Every § 1983 case relating to workplace freedom of speech, from Connick on down, discusses the actual speech engaged in by the employee. Barkoo not only admits, she insists that she did not provide any information to the press. Barkoo provides no authority for the proposition that her free speech rights are deprived in violation of § 1983 when the speech at issue admittedly never occurred.

Id.

In Fogarty v. Boles,

(3d Cir. 1997), the Third

Circuit reached a similar conclusion regarding a claim that a

public school teacher was punished based upon the school

11 principal’s erroneous belief that the teacher had contacted the

press about a matter of public interest at the school. See

. The court held that the teacher “fail[ed] to meet his

burden of proving a violation of his free speech rights [because]

he denie[d] contacting, attempting to contact, or having any

intention of contacting the press.”

The court noted that,

in Mt. Healthy City School District Board of Education v. Doyle,

(1977), the Supreme Court held that a plaintiff

alleging retaliation based upon the plaintiff’s exercise of her

First Amendment rights bears the burden of showing, among other

things, “‘that his conduct was constitutionally protected.’”

Fogarty,

(quoting Mt. Healthy,

).

The court reasoned that the teacher could not “sustain that

burden of proof because there was no conduct that was

constitutionally protected--indeed, there was no conduct--

period.”

The instant case is analogous to Barkoo and Fogarty in all

material respects, and we find the reasoning of the Seventh and

Third Circuits persuasive. Jones contends that she never spoke

out--positively or negatively--regarding the prospect of placing

the alternative education program on the Dunbar campus. The fact

that Collins transferred her on the basis of a mistaken belief

that she spoke out in a manner that we assume for the sake of

argument would have been constitutionally protected fails to

establish a violation of Jones’s First Amendment rights. An

asserted “bad motive” on the part of Collins cannot of itself

12 form the basis of a First Amendment violation. See id. at 890.

“‘[A] free speech claim depends on speech, and there was none in

this case.’” Id. (quoting Pro v. Donatucci,

(3d Cir. 1996) (Roth, J., dissenting)).

Jones argues, however, that her silence on the issue of the

location of TISD’s alternative education program is entitled to

First Amendment protection. In support of this contention, she

relies on Wooley v. Maynard,

(1977), in which the

Supreme Court invalidated a New Hampshire statute requiring

residents to display the state motto of “Live Free or Die” on

their license plates. While it is true that silence in the face

of an illegitimate demand for speech is subject to First

Amendment protection, see

, this principle is

inapplicable here. Jones does not contend that Collins made a

demand--legitimate or otherwise--that she speak out in favor of

the possibility of placing the alternative education program on

the Dunbar campus. Indeed, she specifically contends that he did

not instruct her to speak on this matter.1 Therefore, Jones’s

reliance on Wooley is inapposite.

Jones’s silence in the absence of a demand for speech

likewise does not constitute a form of symbolic expression

1 Moreover, while Jones alleges that Collins transferred her in part “because [she] refused to publicly endorse his plans for Dunbar,” she directs us to no summary judgment evidence supporting this allegation. The summary judgment evidence cited by Jones indicates only that Collins may have transferred her based upon his belief that she had spoken out negatively to members of the community regarding the prospect of placing the alternative education program on the Dunbar campus.

13 warranting First Amendment protection. We reach this conclusion

because “[t]he First Amendment ‘was fashioned to assure

unfettered interchange of ideas for the bringing about of

political and social changes desired by the people.’” Connick,

(quoting Roth v. United States,

(1957)). The goal of unfettered interchange of ideas is not

furthered by “conduct without substantial communicative intent

and impact.” Smith v. Goguen,

(1974) (White,

J., concurring). Accordingly,

[f]or activities to constitute expressive conduct and fall within the scope of the First Amendment, they must be sufficiently imbued with elements of communication. In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we ask whether an intent to convey a particularized message was present and whether the likelihood was great that the message would be understood by those who viewed it.

Cabrol v. Town of Youngsville,

(5th Cir. 1997)

(internal quotation marks and citations omitted).

Nothing in the summary judgment record indicates that Jones

intended her silence on the issue of placement of TISD’s

alternative learning program to constitute a statement of any

sort. Nor does the summary judgment record provide any

indication that anyone, Collins included, had reason to perceive

it as such. Jones has therefore not alleged that she engaged in

any expressive conduct potentially subject to First Amendment

protection. Cf. Langford v. Lane,

(6th Cir.

1991) (applying the public interest and Pickering/Connick

balancing test to an employer’s express refusal to speak with her

14 supervisor); Nicholson v. Gant,

(11th Cir.

1987) (concluding that the plaintiff had engaged in speech

warranting First Amendment protection where she “clearly

expressed her desire not to read [a] prepared statement at [a]

political rally” (emphasis added)); Sykes v. McDowell,

(11th Cir. 1986) (“A public employee who positively

asserts the right not to speak when ordered to support his

employer [politically] is within the protection of the first

amendment.” (emphasis added)).

In sum, the summary judgment record construed in the light

most favorable to Jones indicates that Collins’s transfer of

Jones from her position as principal of Dunbar did not violate

Jones’s constitutional rights, much less any rights clearly

established at the time of the transfer. Collins is therefore

entitled to summary judgment on the basis of qualified immunity.

V. CONCLUSION

For the foregoing reasons, we REVERSE the order of the

district court insofar as it denied Collins’s motion for summary

judgment on his defense of qualified immunity and REMAND for

entry of judgment granting this portion of the motion. Costs

shall be borne by Jones.

15