slip op. at 12 (5th Cir. -- 7 of 16 -- 8 Sept. 16, 1993). Thus, it was proper for… v. In summary, the

* Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 92-9528
_______________
GEORGIANN L. GRACE and
JAMES B. POTTS, JR.,
Plaintiffs-Appellants,
VERSUS
BOARD OF TRUSTEES FOR STATE COLLEGES AND UNIVERSITIES, et al.,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
(CA 84 414)
_________________________
(October 29, 1993)
Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Plaintiffs allege that they were dismissed and demoted from
their jobs as university professors in violation of their First
Amendment rights. Following the grant of a new trial, the district
court granted defendants' motion for summary judgment. Finding no
error, we affirm.

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2
I.
Plaintiff James B. Potts was and is a tenured English
professor at Northeast Louisiana University (the "university") in
Monroe, Louisiana. Plaintiff Georgiann Grace was hired as an
untenured English instructor by Potts during a period when he
served as the head of the English department; she worked at the
university from Spring 1978 through Fall 1984. During this time,
friction developed among plaintiffs and defendants. Defendants
claim that the battle arose from plaintiffs' demands that they be
granted leave from their classes in order to pursue their private
consulting activities together and that they be assigned to teach
certain courses of their choosing.
Grace and Potts exhausted university grievance procedures,
realizing only slight success. In July 1982, they filed suit in
state court, challenging the university's grievance procedures as
violative of the Louisiana Administrative Procedure Act and federal
and state constitutional due process guarantees. The state trial
and appeal courts denied their claims, and the Louisiana Supreme
Court denied certiorari. A few months after the state court suit
concluded, Grace was terminated by the university, and Potts was de
facto demoted by a pay reduction and by increased and inferior
teaching assignments.
On April 18, 1984, plaintiffs filed this suit under 42 U.S.C.
§ 1983, claiming that their First Amendment rights were violated by
the retaliatory acts of defendants in response to their allegedly
protected activity, the filing of the state court suit. Defendants

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3
were a number of administrators at the university, including other
English Department members and members of the initial grievance
panel.
In the first trial in the district court, the jury answered a
series of special interrogatories by finding in favor of the
plaintiffs, awarding Potts $10,000 in compensatory damages and
$25,000 in punitive damages. Grace was awarded $85,000 in
compensatory damages.
Defendants moved for a judgment notwithstanding the verdict
("j.n.o.v."), or alternatively for a new trial. They argued for a
j.n.o.v. on the ground that the district court erred as a matter of
law in treating the plaintiffs' state court suit as a matter of
public concern protected by the First Amendment. The district
court rejected this argument, holding that the suit touched on
matters of public concern.
Defendants also moved for a new trial on the ground that the
court erred in failing to give to the jury a requested special
interrogatory on the so-called Mt. Healthy defense. See Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
The court held that the defendants were prejudiced by its failure
to give the requested interrogatory; thus, it granted a new trial.
At the outset of the second trial, defendants moved for
summary judgment on the ground that as a matter of law plaintiffs'
claims did not touch upon matters of public concern. Applying the
multi-factor test established in Connick v. Myers, 461 U.S. 138
(1983), the district court granted defendants' motion.

-- 3 of 16 --

1 They were the only defendants held liable in the initial jury trial.
4
Plaintiffs now appeal the district court's grant of a new
trial as well as its grant of defendants' summary judgment motion.
Of the initial defendants, only Vines, Morgan, and Jeffrey remain
as defendants in this suit.1
II.
A.
Whether speech is protected by the First Amendment is a
question of law to be determined by the court. Rankin v.
McPherson, 483 U.S. 378, 386 n.9 (1987); Dodds v. Childers, 933
F.2d 271, 273 (5th Cir. 1991). The First Amendment protects a
public employee from being discharged for speaking only if his
speech addresses a matter of "public concern." Dodds, 933 F.2d at
273. If the speech does not address a matter of public concern, "a
court will not scrutinize the reasons motivating a discharge that
was allegedly in retaliation for that speech." Id. If the speech
is deemed to have been on a matter of public concern, the plaintiff
may recover if he can show: (1) that his interest in "commenting
upon matters of public concern" outweighs the defendant's interest
in "promoting the efficiency of the public services he performs,"
Pickering v. Board of Educ., 391 U.S. 563, 568 (1968), and (2) that
the protected speech was a "motivating factor" in the employer's
decision to fire him, Mt. Healthy, 429 U.S. at 287.
We review de novo the question of whether the speech at issue
addresses a matter of public concern. Dodds, 933 F.2d at 273.

-- 4 of 16 --

5
Matters of public concern often are intertwined with private
employee disputes. In such cases, the plaintiff must demonstrate
that his primary purpose for speaking, Dorsett v. Board of
Trustees, 940 F.2d 121, 124 (5th Cir. 1991); Dodds v. Childers, 933
F.2d 271, 274 (5th Cir. 1991), was "as a citizen upon matters of
public concern" and not merely "as an employee upon matters of
personal interest." Connick, 461 U.S. 138, 147 (1983). "Absent
the most unusual circumstances, a federal court is not the
appropriate forum in which to review the wisdom of a personnel
decision taken by a public agency allegedly in reaction to the
employee's behavior." Id.
Under Connick, whether an employee's speech is a matter of
"public concern" is "determined by the content, form, and context
of a given statement, as revealed by the whole record." See also
Ayoub v. Texas A & M Univ., 927 F.2d 834 (5th Cir.), cert. denied,
112 S. Ct. 72 (1991). Whether speech addresses a matter of public
concern should be determined on a case-by-case basis. Moore v.
City of Kilgore, Tex., 877 F.2d 364 (5th Cir.), cert. denied, 493
U.S. 1003 (1989).
The plaintiffs claim that the district court erred in granting
defendants' summary judgment motion. They argue that the district
court held that the speech touched upon a matter of public concern
and thus should not have considered the motives animating their
speech. In the alternative, plaintiffs argue that the court erred
in deciding as a matter of law that the speech was primarily
personal and thus unprotected by the First Amendment. Neither

-- 5 of 16 --

6
position has merit.
B.
Plaintiffs argue that the district court actually held that
the speech at issue was a matter of public concern, and thus it
should not have gone on to consider the motives animating the
speech. In discussing the "content" prong of the Connick test, the
district court wrote,
The court further finds that the subject matter of the
suit touches on matters of public concern, i.e., whether
faculty grievances are conducted in a fair manner in
accordance with state and federal statutory and constitu-
tional requirements. The public naturally has an
interest in ensuring that professors at state universi-
ties are well qualified and productive teachers. Whether
or not faculty grievance procedures are conducted in
accordance with law and in a fair manner may indirectly
affect the quality and efficiency of the teaching staff
and be of interest to the public at large.
Plaintiffs rely upon this statement as a holding that the speech
was a matter of public concern and thus protected by the First
Amendment.
Usually, when courts state that the speech of a government
employee addressed a matter of "public concern," they mean that the
content, form, and context of the speech indicate that the employee
spoke as a citizen on a public issue rather than as an individual
pursuing a private matter. The First Amendment protects from
discharge public employees who speak as citizens. The district
court, however, used the term "public concern" to describe the
content of the plaintiffs' speech. The court thus employed the
term in its analysis, rather than to signal its conclusion.

-- 6 of 16 --

7
Nevertheless, the court went on to consider the form and context of
the speech, as required by Connick. Thus, while the court's use of
language was unconventional, its reasoning was consistent with
Supreme Court precedent.
The court's reasoning was also consistent with Fifth Circuit
practice. In Terrell v. University of Tex. Sys. Police, 792 F.2d
1360, 1362 (5th Cir. 1986), cert. denied, 479 U.S. 1064 (1987), for
example, this court discounted the significance of the content of
the speech standing alone:
Because almost anything that occurs within a public
agency could be of concern to the public, we do not focus
on the inherent interest or importance of the matters
discussed by the employee. Rather, our task is to decide
whether the speech at issue in a particular case was made
primarily in the plaintiff's role as citizen or primarily
in his role as employee. In making this determination,
the 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 moment.
Id.
Almost any issue can be reconstructed to be of interest to the
public in some way; thus, this criterion provides little guidance
in distinguishing public from private speech. The attenuated
connection between plaintiffs' speech and the public's need for the
information provided by Grace and Potts's suit illustrates the
dubious value of relying upon content as the sole guide to identify
what constitutes protected speech.
We focus on the "hat worn by the employee when speaking,"
i.e., whether he speaks as a citizen or a private employee, rather
than upon the "importance" of the issue he addresses. Gillum v.
City of Kerrville, Tex., No. 93-8006, slip op. at 12 (5th Cir.

-- 7 of 16 --

8
Sept. 16, 1993). Thus, it was proper for the district court to
consider Grace and Potts's motives for filing the state court suit.
See Ayoub v. Texas A & M Univ., 927 F.2d 834 (5th Cir. 1991).
C.
The district court applied Connnick and held that plaintiffs'
speech did not address a matter of public concern. We review
motions for summary judgment de novo, and we review the evidence
and any inferences drawn from it in the light most favorable to the
non-moving party. Gillum, No. 93-8006, slip op. at 12. Reviewing
plaintiffs' evidence in this light, we conclude that the district
court did not err in holding that there were no genuine issues of
material fact and that defendants were entitled to summary judgment
as a matter of law.
Grace and Potts's claim is identical to that rejected by this
court in Dorsett. 940 F.2d at 123. Dorsett was a university
professor who claimed that he suffered retaliation for challenging
university policies. The court affirmed the grant of summary
judgment on the ground that his speech was not a matter of public
concern. The court there noted,
The continuing retaliatory actions alleged by Dorsett
appear to be nothing more than decisions concerning
teaching assignments, pay increases, administrative
matters, and departmental procedures. . . . [S[uch
decisions might seem extremely significant to Dorsett,
who has devoted his life to teaching. . . .
[N]evertheless, . . . the alleged harms suffered . . . do
not rise to the level of a constitutional deprivation.
Id.
Similarly, Grace and Potts have demanded leave to engage in

-- 8 of 16 --

9
consulting activities and the right to teach only classes of their
choosing. They complain that as a result of their state court
action Grace, a non-tenured instructor, was terminated, and Potts
suffered a pay reduction and increased and inferior teaching
assignments. As in Dorsett, "[t]hese concerns are matters of
private, not public, interest." Id. at 124.
Dorsett instructs us to be especially wary of attempting to
"micromanage the administration of thousands of state educational
institutions." Id. "Of all fields that the federal courts `should
hesitate to invade and take over, education and faculty appoint-
ments at [the university] level are probably the least suited for
federal court supervision.'" Id. (quoting Smith v. University of
N. Car., 632 F.2d 316, 345 (4th Cir. 1980)). Dorsett concluded,
In public schools and universities across this nation,
interfaculty disputes arise daily over teaching assign-
ments, room assignments, administrative duties, classroom
equipment, teacher recognition, and a host of other
relatively trivial matters. A federal court is simply
not the appropriate forum in which to seek redress for
such harms.
Id. at 123. We heed this warning in affirming the summary
judgment.
Plaintiffs are unable to demonstrate that any issue of
material fact remains as to whether they can show that their
primary motivation in bringing their state court suit was to
benefit the public, rather than to further their private dispute
with the university. Thus, defendants are entitled to summary
judgment as a matter of law. To reach this conclusion, we examine
the content, form, and context of the speech. Connick, 461 U.S. at

-- 9 of 16 --

10
148.
The district court found that the content of the state court
suit was loosely tied to a matter of public concern: university
grievance procedures and the ability of the university to hire and
retain professors. While logically relevant, the practical
relationship between Grace and Potts's lawsuit and the quality of
Louisiana's state university system is slight. In discussing the
context of plaintiffs' speech, the district court found that they
"presented no evidence that their primary motivation was to aid
other faculty members or draw attention to matters beyond those
involving their own personal interests."
There is some evidence that plaintiffs were not acting solely
from self-interest in challenging the university grievance
procedures. In her deposition, Grace testified that she filed the
lawsuit because she "was speaking out on a matter that should have
concerned everyone, and that was the corruption within the
university and the breakdown of the faculty procedure itself."
Potts also stated during the first trial that his motives were not
wholly selfish.
The district court dismissed these statements as "retroactive
embellishment" of plaintiffs' private claims. At best, these
statements suggest that the public good was one motive animating
Grace and Potts's suit. But these statements fall short of proof
that would allow a reasonable jury to conclude that this was their
primary motivation.
Finally, under Connick, we look at the form of the speech.

-- 10 of 16 --

11
Bringing suit in state court is unquestionably the availment of a
public setting. Stating private demands in a public setting,
however, does not automatically convert the private grievance into
a matter of public concern. See Caine v. Hardy, 943 F.2d 1406,
1416 (5th Cir. 1991) (en banc), cert. denied, 112 S. Ct. 1474
(1992) ("context alone cannot transform an inherently self-
interested opinion into one that implicates public issues. Had
[plaintiff] proclaimed his opposition to [defendant] . . . from the
steps of the Mississippi capitol, the characterization of this
speech would not differ.").
The district court held that the "activity sought to be
protected [was] the pursuit of the lawsuit as opposed to any
specific testimony elicited therein." There is no evidence that
the availment of a public setting was anything but incidental to
the pursuit of private demands.
The content, form, and context of plaintiffs' speech indicate
that theirs was nothing more than a private dispute with their
employer, which coincidentally happened to be a state university.
Under the facts of their case, no constitutional concerns are
implicated: "Our responsibility is to ensure that citizens are not
deprived of fundamental rights by virtue of working for the
government; this does not require a grant of immunity for employee
grievances not afforded by the First Amendment to those who do not
work for the State." Connick, 461 U.S. at 147.
III.

-- 11 of 16 --

2 It is uncertain whether plaintiffs even properly raised this claim in
the district court, as the district court did not discuss the petition clause
in granting summary judgment.
12
Plaintiffs argue that even if their state court suit is not
protected by the freedom of speech provisions of the First
Amendment, they have a claim under that amendment's petition
clause.2 They contend that the clauses protect distinct behavior
and that the public concern requirement limiting invocation of the
free speech clause should not apply to the petition clause. This
argument is meritless.
The First Amendment guarantees three distinct rights: Congress
shall make no law [i] respecting an establishment of religion, or
prohibiting the free exercise thereof; [ii] or abridging the
freedom of speech or of the press; [iii] or the right of the people
peaceably to assemble and to petition the Government for a redress
of grievances. U.S. CONST. AMEND. I. Plaintiffs argue that each
clause should be construed independently from the others. More
specifically, they argue that the public concern showing required
to invoke free speech protection should not apply to the petition
clause. The defendants respond that the petition clause has been
interpreted identically to the speech clause, and thus a showing of
public concern should be required.
There is no support in authority or in logic for construing
the petition clause more broadly than the speech clause. The
Supreme Court stated this unequivocally in McDonald v. Smith:
To accept petitioner's claim . . . would elevate the
Petition Clause to special First Amendment status. The
Petition Clause, however, was inspired by the same ideals

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13
of liberty and democracy that gave us the freedoms to
speak, publish, and assemble. These First Amendment
rights are inseparable, and there is no sound basis for
granting greater constitutional protection to statements
made in a petition . . . than other First Amendment
expressions.
472 U.S. 479, 485 (1985). Similarly, in Day v. South Park Indep.
Sch. Dist., 768 F.2d 696, 701 (5th Cir.), cert. denied, 474 U.S.
1101 (1985), this court explicitly rejected the claim that matters
of private concern, whether raised as speech or petition claims,
are protected by the First Amendment's shield.
In this case, the speech and petition acts are the same: the
filing of the state court suit. For the reasons identified in
rejecting plaintiffs' free speech claim, we conclude that their
claim under the petition clause does not address a matter of public
concern; thus, summary judgment on this ground was proper.
IV.
Following a verdict for plaintiffs, the district court granted
the defendants' motion for a new trial on the ground that the
failure to give a requested special interrogatory confused the jury
and prejudiced defendants. Plaintiffs contend that granting this
motion was an abuse of discretion.
At trial, defendants requested a jury interrogatory "asking in
effect: In the event that you find that the prosecution of the
lawsuit was a motivating factor [in the adverse employment
decision], then do you find that defendants would have taken the
same action anyway?" This instruction is known as the Mt. Healthy
defense. Mt. Healthy, 429 F.2d at 287.

-- 13 of 16 --

3 This instruction actually misstates the Mt. Healthy rule. Under Mt.
Healthy, defendants bear the burden to show that they would have taken the
adverse employment action independently of the protected speech.
14
Under FED. R. CIV. P. 59, the court may grant a new trial based
upon its appraisal of the fairness of the trial and the reliability
of the jury's verdict. A new trial may be granted if the court
finds that the trial was unfair or marred by prejudicial error.
Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir.
1985). A motion for new trial may also be granted for substantial
errors of law in the admission or rejection of evidence or the
giving or refusal of instructions. Challenges made to special jury
interrogatories are considered in context with the surrounding
circumstances, including the court's instructions to the jury.
Winter v. Brenner Tank, Inc., 926 F.2d 468, 472 (5th Cir. 1991).
The court charged the jury that "[t]he plaintiff[s] must prove
that the exercise of the First Amendment right was a substantial
motivating cause in the employment decision, and that the employ-
ment decision would not otherwise have been made."3 Despite
instructing the jury correctly, the district court granted
defendants' motion for a new trial on the ground that the special
interrogatories failed fully to consider the Mt. Healthy defense.
The judge gave the jury the following interrogatories. For
Potts, the interrogatory read, "Do you find that prosecution of a
lawsuit by plaintiff Potts in state court against Northeast
Louisiana University was a substantial or motivating factor in the
decision of any defendant to levy a de facto demotion upon
plaintiff James Potts?" Similarly, for Grace the interrogatory

-- 14 of 16 --

15
read, "Do you find that a substantial or motivating factor in the
decision not to rehire plaintiff Georgiann Grace was Grace's
prosecution of a lawsuit against Northeast Louisiana university in
state court?"
The interrogatories failed to ask the jury whether the adverse
employment decision would have been made notwithstanding the
protected speech. Asking whether the speech was a factor in the
adverse employment decision does not force the jury to consider
whether other factors would have led the university to the same
conclusion. For example, the protected speech may be redundant to
other reasons behind the adverse employment decision. The court
was within its discretion to decide that the special interrogato-
ries did not "match" the jury instructions, prejudicing the
defendants.
Plaintiffs rely upon two cases to support their claim that the
district court exceeded its discretion in granting defendants'
motion for a new trial: Winter v. Brenner Tank and Kemp v. Ervin,
651 F. Supp. 495 (N.D. Ga. 1986). In Winter, the court held that
proper jury instructions could correct errors in an interrogatory.
Winter, 926 F.2d at 472. In Winter, however, the court gave
additional instructions on the specific interrogatory in issue, and
the jury manifested its understanding of the issues. Id. Thus,
there was no reason to believe that the jury was confused by the
erroneous interrogatory. In the current case, however, the court
did not supplement its original instructions in order to alleviate
confusion, nor did the jury manifest any understanding of the

-- 15 of 16 --

16
relationship between the interrogatories and the court's instruc-
tions.
Second, plaintiffs argue that this case is analogous to Kemp,
651 F. Supp. at 502. This analogy is flawed. The defendants in
Kemp argued that the Mt. Healthy test was withdrawn from the jury
by a failure to provide interrogatories consistent with the jury
instructions.
Grace contends that Kemp rejected defendant's claim "because
the jury was fully charged in a manner which comported with the
requirements of Mt. Healthy." But the court in Kemp also denied
the motion because it concluded that the language of the interroga-
tories, standing alone, was sufficient to require the jury to
consider the Mt. Healthy defense. Id. Accordingly, the district
court did not abuse its discretion in granting a new trial on the
ground that the special interrogatories did not fully instruct the
jury on the Mt. Healthy defense, thereby confusing the jury and
prejudicing the defendants.
V.
In summary, the plaintiffs challenge to the university
grievance procedure does not address a matter of public concern.
The Constitution does not require this court to intervene in
private employee disputes. The summary judgment is AFFIRMED.

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