Brown v. Kilgore College ( 2002 )


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  •                    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    this opinion should not be published and is not precedent except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