The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 12, 2004
Charles R. Fulbruge III
Clerk
No. 02-11343
Summary Calendar
SURESH DUTTA,
Plaintiff-Appellee,
versus
DAVID A. PISTENMAA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-2053-M
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
David A. Pistenmaa, M.D., appeals the district court’s denial
in part of his summary judgment motion asserting a qualified
immunity defense to the First Amendment retaliation claims of
Suresh Dutta, M.D. The summary judgment evidence revealed two
versions of the relevant facts. Dr. Dutta’s version was that his
employment contract was not renewed for his assistant professor
position because he criticized the hospitals’ disparate treatment
of insured patients who could pay for services and uninsured ones
*
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this opinion should not be published and is not precedent except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.
No. 02-11343
-2-
who were indigent. Dr. Pistenmaa’s version was that the nonrenewal
of Dr. Dutta’s contract was based on Dr. Dutta’s poor work habits,
his hostile attitude, and his condescending and disrespectful
treatment of staff and faculty members.
To establish a 42 U.S.C. § 1983 cause of action for a First
Amendment claim of retaliation, an employee must show: (1) that he
suffered an adverse employment action, (2) as a result of speech
involving a matter of public concern, (3) that his interest in
commenting on the matter of public concern outweighed the
defendant’s interest in promoting efficiency, and (4) that the
adverse action was motivated by the protected speech. Foley v.
Univ. of Houston Sys., 355 F.3d 333, 340 (5th Cir. 2003). The
district court denied summary judgment on the basis of, inter alia,
the fourth factor, i.e., there were genuine issues of fact
regarding causation. Because the district court’s decision falls
into a non-appealable category, i.e., a genuine issue of fact
exists regarding whether the defendant engaged in conduct that
violated a clearly established constitutional right, this court
lacks jurisdiction to hear this appeal. See Kinney v. Weaver, 367
F.3d 337, 346 (5th Cir. 2004)(en banc).
DISMISSED FOR LACK OF JURISDICTION.