Brown v. Armenti

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

4-17-2001

Brown v. Armenti

Precedential or Non-Precedential:

Docket 00-1587

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Filed April 17, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1587

ROBERT A. BROWN

v.

ANGELO ARMENTI, JR.; CALIFORNIA UNIVERSITY OF

PENNSYLVANIA; BARBARA A. ARMENTI; CUR TIS C.

SMITH; DELORES L. ROZZI; HAYWOOD L. PERR Y;

BONITA A. KLINE; BETH BAXTER; JAMES H.

MCCORMICK; CBS CORP KDKA-TV; WESTINGHOUSE

BROADCASTING COMPANY KDKA-TV; WESTINGHOUSE

CBS HOLDING COMPANY, INC. KDKA-TV; CBS

BROADCASTING INC., aka KDKA-TV; PAUL MAR TINO;

CHARLES D. FOUST; GERALD F. KELLEY; KAREN D.

LUM; LINDA J. MCCLELLAN; DEAN WEBER; CARLEEN C.

ZONI; JUDY ANSILL; WILLIAM F. BARRY; FRANK

DELUCA; CARMINE DURZO; ANNETTE GANASSI; PAUL

LEMMON; EDWARD M. PAULSO; STEVEN STOUT; JOHN

K. THORNBURGH; AARON WALTON; ROBER T WETZEL;

FOUNDATION FOR CALIFORNIA UNIVERSITY

OF PENNSYLVANIA

Angelo Armenti, Jr.,

Appellant

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 98-cv-01332)

District Judge: Honorable Donetta W. Ambr ose

Argued

March 12, 2001

Before: MANSMANN, BARRY and COWEN, Circuit Judges.

(Filed: April 17, 2001)

John M. Golden, Esquire (Argued)

First & Market Building

100 First Avenue, Suite 825

Pittsburgh, PA 15222

Counsel for Appellee

D. Michael Fisher

Attorney General

John G. Knorr, III, (Argued)

Chief Deputy Attorney General

Chief, Appellate Litigation Section

Office of Attorney General of

Pennsylvania

Department of Justice

Strawberry Square

15th Floor

Harrisburg, PA 17120

Counsel for Appellant

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this interlocutory appeal, the defendant appeals the

District Court's denial of a motion for summary judgment

in a section 1983 action where the defendant asserted the

defense of qualified immunity. What is unusual her e is the

setting -- a public university. In an amended complaint, a

tenured professor alleged that he was suspended from

teaching a class after he refused the university president's

instruction to change a student's grade and that he was

discharged after submitting a written criticism of the

president to be presented to the university board of

trustees. According to the complaint, these wer e acts of

retaliation which violated the professor's rights to academic

freedom and free speech protected by the First Amendment.

We conclude that the amended complaint did not allege

deprivations of constitutional rights and that summary

judgment should have been granted. We ther efore will

2

reverse the portion of the District Court's judgment that

dealt with these issues and remand for the District Court to

enter summary judgment for the defendant university

president.

When an appellate court reviews the denial of a

defendant's claim to qualified immunity, "the appealable

issue is a purely legal one: whether the facts alleged . . .

support a claim of violation of clearly established law."

Mitchell v. Forsyth, 472 U.S. 511, 528 n.9 (1985).1 Resolving

the legal issues, however, requir es "consideration of the

factual allegations that make up the plaintif f 's claim for

relief." Id at 528. For this r eason, we present the facts as

they have been alleged by the plaintiff and do not concern

ourselves with weighing the correctness of the plaintiff 's

version. Id. Our review is plenary. Abbott v. Latshaw, 164

F.3d 141, 145 (3d Cir. 1998).

I.

For twenty-eight years, plaintiff Robert Br own was

employed as a professor at California University of

Pennsylvania; he has been tenured since 1972. At the

conclusion of the spring 1994 semester, the plaintiff

assigned an "F," or "failing," grade to one of his students in

_________________________________________________________________

1. Although 28 U.S.C. S 1291 confers jurisdiction upon the courts of

appeals to hear appeals from final decisions of district courts, the

collateral order doctrine creates an exception to the general rule. In re

Montgomery County, 215 F.3d 367, 373 (3d Cir. 2000); Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985).

The parties briefed the issue of the defendant's qualified immunity, but

the District Court did not explicitly address the question. When it

concluded that summary judgment was not appr opriate, however, the

Court implicitly ruled on the matter. Even though a district court does

not explicitly address the immunity claims, we nonetheless have

jurisdiction to review the implied denial of those claims. In re

Montgomery County, 215 F.3d at 373. "[A] district court's denial of a

claim of qualified immunity, to the extent that it turns on an issue of

law, is an appealable `final decision' within the meaning of 28 U.S.C.

S 1291 notwithstanding the absence of a final judgment." Behrens v.

Pelletier, 516 U.S. 299, 306 (1996) (quoting Mitchell, 472 U.S. at 530);

Sterling v. Borough of Minersville, 232 F .3d 190, 197 (3d Cir. 2000).

3

a practicum course because the student had attended only

three of fifteen class sessions. Defendant Angelo Armenti,

the university president, ordered that the grade be changed

to "Incomplete," but the plaintiff r efused.

The plaintiff alleged that, as a result of his refusal, the

university suspended him from teaching the course. He

further contended that "[a]s a result of this and other

matters, the plaintiff wrote a critical r eview of Defendant

Armenti for presentation to the University Board of

Trustees." Two years later, the university terminated the

plaintiff 's employment.

The plaintiff then filed a sixteen-count complaint in a

Pennsylvania state court, naming Armenti and thirty-one

other individuals or entities as defendants. The complaint

alleged violations of state law as well as of federal and state

constitutional law. Pursuant to 28 U.S.C. S 1446(d), the

case was removed to the United States District Court for

the Western District of Pennsylvania. 2 By the time the

District Court considered the motion for summary

judgment now before us, the only claims r emaining for

disposition were federal civil rights violations alleged

against several defendants including Armenti, and a civil

rights retaliation claim against Armenti alone. Count V in

the complaint stated the retaliation claim against Armenti:

"80. Defendant Armenti retaliated against Plaintiff

because Plaintiff refused to change a student's grade at

the order of Defendant Armenti, in violation of

Plaintiff 's right to academic free expression, in

violation of the First and Fourteenth Amendments to

the United States Constitution.

81. Defendant Armenti retaliated against Plaintiff for

Plaintiff 's critical review of Defendant Armenti for the

Board of Trustees in violation of Plaintiff 's right to free

speech under the First and Fourteenth Amendments to

the United States Constitution."

_________________________________________________________________

2. Because plaintiff alleged claims arising under the Constitution and the

laws of the United States, the District Court's jurisdiction was proper

under 28 U.S.C. S 1331.

4

The District Court granted summary judgment as to all

the claims except for those in Count V. The District Court

denied defendant Armenti's motion for summary judgment

as to the Count V claims, concluding that both the

plaintiff 's criticism of Armenti and the plaintiff 's

assignment of student grades were protected speech under

the First Amendment. The District Court did not addr ess

the defendant's claim to qualified immunity. The defendant

filed a timely appeal, asserting again that qualified

immunity provides him a defense to the Count V claims.

II.

The doctrine of qualified immunity establishes"that

government officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established

statutory or constitutional rights of which a r easonable

person would have known." Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). This doctrine is founded upon the

recognized "need to protect officials who are required to

exercise their discretion and the r elated public interest in

encouraging the vigorous exercise of official authority." Id.

at 807 (internal quotations and citation omitted).

We have held that the defendant is entitled to the defense

of qualified immunity if none of the following questions can

be answered in the affirmative: (1) have the plaintiffs

alleged a violation of their statutory or constitutional rights;

(2) was the right alleged to have been violated clearly

established in the existing law at the time of the violation;

and (3) should a reasonable official have known that the

alleged action violated the plaintiffs' rights. Rouse v.

Plantier, 182 F.3d 192, 196-97 (3d Cir . 1999). The

threshold-nature of the inquiry serves tofilter unfounded

claims and "promotes clarity in the legal standards for

official conduct, to the benefit of both the officers and the

general public." Wilson v. Layne, 526 U.S. 603, 609 (1999)

(citing County of Sacramento v. Lewis, 523 U.S. 833, 840-

42 n.5 (1998)); Siegert v. Gilley, 500 U.S. 226, 232 (1990)

("Decision of [the] purely legal [immunity] question[s]

permits courts expeditiously to weed out suits which fail

the test without requiring a defendant who rightly claims

5

qualified immunity to engage in expensive and time

consuming preparation to defend the suit on its merits.").

We turn, therefore, to the question of whether First

Amendment rights were violated.3

III.

The Supreme Court has held that the First Amendment

prohibits the government from r egulating speech based

upon its substantive content or the message it conveys.

Rosenberger v. Rector and Visitors of University of Virginia,

515 U.S. 819, 828 (1995). Here, we must consider whether

the alleged actions of the defendant, the pr esident of a

public university, had the effect of discouraging speech

with a disfavored message and, therefor e, amounted to an

improper conditioning of public employment. The plaintiff

has alleged two acts of retaliation and two theories

supporting First Amendment protection of his speech. First,

he asserts that retaliation following the plaintiff 's refusal to

change the grade violated a right to academic fr ee

expression under the First Amendment. Second, the

plaintiff contends that the defendant's firing him for

submitting a written criticism violated the generalized free

speech rights under the First Amendment. We will consider

these arguments in turn.

A.

Employees of federal and state government do not

relinquish their First Amendment rights to comment on

matters of public interest as a condition of their

government employment. Pickering v. Boar d of Education,

391 U.S. 563, 568 (1968). Nor do "students or teachers

shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate." T inker v. Des Moines

_________________________________________________________________

3. The First Amendment states that "Congr ess shall make no law . . .

abridging the freedom of speech . . . ." The Fourteenth Amendment

applies this provision of the Bill of Rights to the States. Gitlow v.

People

of State of New York, 268 U.S. 652, 666 (1925). In Monroe v. Pape, 365

U.S. 167 (1961), the Supreme Court held that 42 U.S.C. S 1983 creates

a remedy for violations of rights secur ed by the Constitution or the laws

of the United States. Id. at 172.

6

School District, 393 U.S. 503, 506 (1968). Furthermore, the

Supreme Court has held that the university setting is one

in which First Amendment free speech pr otections in that

context are of particular importance:

The essentiality of freedom in the community of

American universities is almost self-evident. No one

should underestimate the vital role in a democracy that

is played by those who guide and train our youth. T o

impose any strait jacket upon the intellectual leaders

in our colleges and universities would imperil the

future of our Nation.

Sweezy v. State of New Hampshire, 354 U.S. 234, 250

(1957).

These statements notwithstanding, there ar e recognized

limitations upon free speech in the university setting. For

example, we held in Edwards v. Califor nia University of

Pennsylvania, 156 F.3d 488, 491 (3d Cir . 1998), that "a

public university professor does not have a First

Amendment right to decide what will be taught in the

classroom."

In Edwards, a university professor alleged a violation of

his First Amendment rights when the school disciplined

him after a series of disputes with the administration over

course curriculum. Id. at 490. We concluded that no

violation occurred because in the classr oom, the university

was the speaker and the professor was the agent of the

university for First Amendment purposes. Id. at 491. In

support of this conclusion, the Edwards opinion quoted

from the Supreme Court opinion in Rosenberger:

[w]hen the state is the speaker, it may make content-

based choices. When the University determines the

content of the education it provides, it is the University

speaking, and we have permitted the gover nment to

regulate the content of what is or is not expr essed

when it is the speaker or when it enlists private entities

to convey its own message . . . . It does not follow,

however, . . . that viewpoint-based r estrictions are

proper when the University does not speak itself or

subsidize transmittal of a message it favors but instead

expends funds to encourage a diversity of views fr om

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private speakers. A holding that the University may not

discriminate based on viewpoint of private persons

whose speech it facilitates does not restrict the

University's own speech, which is controlled by

different principles.

Id. at 491-92 (quoting Rosenberger , 515 U.S. 819 (1995).

Edwards distinguished the rights of a professor in the

classroom from those out of the classr oom. Id. at 492. "In

the classroom" refers to those settings where the professor

is acting as the university's proxy, fulfilling one of the

functions involved in the university's "four essential

freedoms:" choosing "who may teach, what may be taught,

how it shall be taught, and who may be admitted to study."

Id. at 492 (citing Regents of Univ. of California v. Bakke,

438 U.S. 265, 312 (1978)). Because grading is pedagogic,

the assignment of the grade is subsumed under the

university's freedom to determine how a course is to be

taught. We therefore conclude that a public university

professor does not have a First Amendment right to

expression via the school's grade assignment pr ocedures.

The plaintiff 's argument to the contrary relies upon the

analysis adopted by the Court of Appeals for the Sixth

Circuit in Parate v. Isibor, 868 F .2d 821 (6th Cir. 1989). In

Parate, a non-tenured professor was forced to sign a

memorandum changing a student's grade. Id. at 823-34. He

was not permitted to note on the document that the change

was "per instructions from [the] Dean . . . ." Id. The Court

held that a professor's First Amendment right was violated

because the "assignment of a letter grade is a symbolic

communication intended to send a specific message to the

student . . . [and] is entitled to some measur e of First

Amendment protection." Id. at 827 (citing Tinker, 393 U.S.

at 505-06). The Court concluded that the University was

the speaker only as far as the grade on the student's

transcript. Id. at 829.

The Edwards framework, however , applies to the present

case and offers a more realistic view of the university-

professor relationship. Whether the school registrar is told

that a student's performance rates an"F " or an

"Incomplete" is not a matter that warrants the"intrusive

8

oversight by the judiciary in the name of the First

Amendment." Connick v. Myers, 461 U.S. 138, 146 (1983);

Wozniak v. Conry, 236 F.3d 888, 891 (7th Cir. 2001) ("Some

universities offer their faculty more control over grading

than [in this case] and maybe discretion is good. But

competition among systems of evaluation at dif ferent

universities, not federal judges, must settle the question

which approach is best."). We note that our holding today

is consistent with at least one other Court of Appeals. See

Lovelace v. Southern Methodist University, 739 F.2d 419,

426 (2d Cir. 1986) (per curiam).

B.

In his second argument, the plaintiff asserts that

retaliation following his submission of a critical evaluation

violated his free speech rights under the First Amendment.

When resolving such disputes, courts must strike "a

balance between the interests of the [employee], as a

citizen, in commenting upon the matters of public concern

and the interest of the State, as an employer , in promoting

the efficiency of the public services it per forms through its

employees" when determining whether a public employer

acted properly in discharging an employee for engaging in

speech. Pickering, 391 U.S. at 568. The thr eshold question

in this analysis is whether the employee's speech may fairly

be characterized as a matter of public concer n. Rankin v.

McPherson, 483 U.S. 378, 384 (1987).

In Connick v. Myers, a District Attor ney fired an Assistant

District Attorney for distributing a questionnaire to fellow

staff members. 461 U.S. at 141. The survey sought staff

views on the office transfer policy, office morale, the need

for a grievance committee, the level of confidence in

supervisors, and whether employees felt pressur ed to work

in political campaigns. Id.

The Court reiterated the balancing described in Pickering,

this time addressing a single question in the analysis:

whether the subject of the employee's expression was " `a

matter of legitimate public concern' upon which `free and

open debate is vital to informed decision-making by the

electorate.' " Id. at 145 (quoting Pickering, 391 U.S. at 571-

72). The Court reasoned that if the employee's speech

9

cannot be fairly characterized as constituting speech

on a matter of public concern, it is unnecessary for us

to scrutinize the reasons for her dischar ge. When

employee expression cannot be fairly consider ed as

relating to any matter of political, social, or other

concern to the community, government officials should

enjoy wide latitude in managing their offices, without

intrusive oversight by the judiciary in the name of the

First Amendment.

Id. at 146 (internal footnote omitted). The Court pointed to

the standard applied in the common law tort for invasion of

privacy as the correct standard to apply when determining

whether an expression is of a kind that is of legitimate

concern to the public. Id. at 143 n.5 (citing Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)). The Cox

standard for determining whether a topic is a legitimate

matter of public concern is functional, asking whether

there is a public benefit in reporting the matter. 420 U.S. at

495.

In Connick, the Court concluded that "[w]hether an

employee's speech addresses a matter of public concern

must be determined by the content, for m, and context of a

given statement, as revealed by the whole r ecord." Id. at

148-49. The Court concluded that all but one of the

questions on the survey dealt with the individual

employee's dispute with the District Attorney and were not

"of public import in evaluating the perfor mance of the

District Attorney as an elected official." Id. at 148. Because

the questionnaire concerned matters of public interest "in

only a most limited sense . . . [t]he limited First

Amendment interest involved here does not require that

[the employer] tolerate action which he r easonably believed

would disrupt the office, undermine his authority, and

destroy close working relationships." Id. at 154.

Four years later, in Rankin v. McPherson the Supreme

Court considered the question again -- whether a

statement by an employee that led to her firing was a

matter of public concern. 483 U.S. at 384. The employee in

Rankin worked in a constable's office and had remarked

after hearing of an attempt on the life of the Pr esident, "If

they go for him again, I hope they get him." Id at 379. In

10

determining the "public concern" threshold test, the Court

reasoned that because the statement was made in the

context of a discussion about the policies of the Pr esident's

administration, and because it was said following a news

bulletin of national interest, it "plainly dealt with a matter

of public concern." Id. at 386.

Whether the subject matter of the "speech" was a

legitimate matter of public concern is a question of law.

Connick, 461 U.S. at 148 n.7. The fact that the matter now

on appeal is a legal issue distinguishes the pr esent

interlocutory appeal from that in Johnson v. Jones, 515

U.S. 304 (1995). In deciding Johnson, the Court resolved a

circuit split in the courts of appeals "about the immediate

appealability of . . . pretrial `evidence insufficiency' claims

made by public official defendants who assert qualified

immunity defenses." Johnson, 515 U.S. at 308. Although

there is some broad language in Johnson that might

suggest the Court foreclosed any consideration of the

sufficiency of the evidence when courts of appeals review

summary judgment motions, the Court limited the holding

in at least two ways. First, it noted that the decision did not

change the law for many courts of appeals.4 Johnson, 515

U.S. at 307, 318, 319 (observing that "our holding here has

been the law in several Circuits for some time" and

referring to a listing of cases that included Giuffre v. Bissell,

31 F.3d 1241 (3d Cir. 1994)). Second, the Court

acknowledged that where a district court does not clearly

state facts relevant to a question of law, it might be

appropriate for a court of appeals to "undertake a

cumbersome review of the record to determine what facts

the district court . . . likely assumed." Id . at 319. In

addition, the Supreme Court recently clarified the holding

in Johnson:

Johnson held, simply, that determinations of

_________________________________________________________________

4. We had held in Giuffre v. Bissell, 31 F.3d 1241 (3d Cir. 1994), that a

claim that "I didn't do it" is differ ent than a claim to the right of

qualified

immunity and that a denial of summary judgment motion based on the

former is not appealable. Id. at 1258 (citing Burns v. County of Cambria,

971 F.2d 1015, 1019 (3d Cir. 1992)). Our holding in Giuffre is consistent

with the later opinion by the Supreme Court.

11

evidentiary sufficiency at summary judgment ar e not

immediately appealable merely because they happen to

arise in a qualified-immunity case; if what is at issue

in the sufficiency determination is nothing more than

whether the evidence could support a finding that

particular conduct occurred, the question decided is

not truly "separable" from the plaintif f 's claim, and

hence there is no "final decision" under Cohen and

Mitchell. Johnson reaffir med that summary judgment

determinations are appealable when they resolve a

dispute concerning an "abstract issu[e] of law" relating

to qualified immunity -- typically, the issue whether

the federal right was "clearly established."

Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (citations

omitted).

In Grant v. City of Pittsburgh, 98 F .3d 116 (3d Cir. 1996),

we observed that "crucial to the resolution of any assertion

of qualified immunity is a careful examination of the record

(preferably by the district court) to establish, for purposes

of summary judgment, a detailed factual description of the

action of each individual defendant." Id. at 122. We have

also noted that although the qualified immunity inquiry is

primarily legal, "some factual allegations . . . are necessary

to resolve the immunity question." Gruenke v. Seip, 225

F.3d 290, 299 (3d Cir. 2000). Ther efore, Johnson does not

foreclose an appellate court from scrutinizing the evidence

put forward by the plaintiff following a qualified immunity

summary judgment motion.

The role of a factual inquiry resolving a claim to qualified

immunity is addressed in Anderson v. Cr eighton, 483 U.S.

635 (1987). In Creighton, the Supr eme Court considered

whether an officer was liable for conducting an

unreasonable search if a reasonable officer could have

believed that the search was lawful. Id. at 637. The Court

required a particular inquiry, stating that the "relevant

question in this case . . . is the objective (albeit fact-

specific) question whether a reasonable officer could have

believed Anderson's warrantless search to be lawful, in light

of clearly established law and the information the searching

officers possessed." Id. at 641. The Court vacated the

judgment and remanded the case with specific instructions

12

that any discovery "should be tailored specifically to the

question of Anderson's qualified immunity." Id. at 646 n.6.

Creighton instructs that "the balance that our cases

strike between the interests in vindication of citizens'

constitutional rights and in public officials' ef fective

performance of their duties," id . at 639, requires plaintiffs

to respond to a defendant's claim of qualified immunity

with evidence that the actions alleged "ar e actions that a

reasonable officer could have believed [un]lawful." Id. at

646 n.6. As a result, a respondent does not satisfy the Rule

56(e) burden by relying upon bare allegations or assertions

of abstract rights. If the defendant official is liable only

where "[t]he contours of the right [are] sufficiently clear that

a reasonable official would understand that what he is

doing violates that right," id. at 640, it is reasonable for a

court considering a qualified immunity summary judgment

motion to require that the plaintif f make clear what the

alleged violation is. Where plaintiff fails to present

particularized facts, the motion should be granted. 5

In the present case, it is clear that the plaintiff did not

satisfy Creighton. The District Court conceded that it did

not know the content of the speech at issue. The r ecord

contains only two clues about the content of the evaluation:

the assertion in the complaint that the plaintif f 's evaluation

was "critical," and the plaintiff 's testimony that the

evaluation was submitted on a two-page form that "had

room to respond to four or five dif ferent things that had to

do with academic standards and faculty morale and how

the president dealt with various issues on campus."

Although his deposition testimony indicates that he had

access to a copy of the completed evaluation for m, he did

not enter the document into the record. Nor does the

plaintiff disclose the substance of his comments on the

form, saying only that he did not choose the subjects, but

_________________________________________________________________

5. This is not a weighing of evidence for a deter mination of whether

there

is a genuine issue of fact, such as the Court held was not appealable in

Johnson, because the legal question here is separable from the inquiry

that is the basis of the plaintiff 's claim. Behrens, 516 U.S. at 313.

Rather, the requirement prevents the clever plaintiff from bypassing the

qualified immunity "filter" simply by identifying an abstract right.

13

that his was "a response to an evaluation form that I had

been given."

It is the words that the plaintiff wr ote on the form that

allegedly motivated the retaliation. When considering a

summary judgment motion, a court must have befor e it the

"content, form, and context of a given statement, as

revealed by the whole record" to determine if the

statements were of legitimate public concer n. The plaintiff

did not provide such proof, alleging only that the speech

was "critical." In the absence of evidence, the District Court

improperly inferred that the speech addr essed "academic

integrity." By failing to require the proof, the District Court

allowed the plaintiff "to convert the rule of qualified

immunity . . . into a rule of virtually unqualified liability

simply by alleging violations of extremely abstract rights."

Creighton, 483 U.S. at 639.

Finally, even if we were convinced that the plaintiff 's

response to the summary judgment motion satisfied

Creighton, we conclude that summary judgment would have

been appropriate nonetheless. On the facts found by the

District Court, the subject of the plaintiff 's speech closely

resembles that of the questions on the survey in Connick.

Those dealt with office morale, the transfer policy, and

employee confidence in supervisors. Connick , 461 U.S. at

141. The District Court here reasoned that the issues

contained speech which was in the category of "academic

integrity," "relevant to the gover ning of the University, and

therefore, . . . of public concern," but this is comparable to

the dissent in Connick concluding that the issues there

"could reasonably be expected to be of inter est to persons

seeking to develop informed opinions about the manner in

which . . . an elected official . . . dischar ges his

responsibilities." Id. at 163 (Br ennan, J., dissenting). Had

the plaintiff been reprimanded for speaking regarding, for

example, grade inflation, a specific subject about which

there is demonstrated interest, he might have satisfied this

test. As it stands, the speech alleged reflects little more

than one employee's dissatisfaction with an administrative

decision by his employer, Connick, 461 U.S. at 148-49. As

such, there would be no public benefit in r eporting this

matter, Cox, 420 U.S. at 495, and wefind no constitutional

violation.

14

IV.

We conclude that the defendant is entitled to qualified

immunity as to Count V because no actual constitutional

violation was alleged. For this reason, that portion of the

judgment of the District Court on appeal will be r eversed

and on remand the District Court will be instructed to enter

summary judgment for the defendant university pr esident.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

15