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Wilkerson v. University of North Texas

United States Court of Appeals, Fifth Circuit

December 20, 2017

DALE A. WILKERSON, Plaintiff - Appellee
UNIVERSITY OF NORTH TEXAS, By and Through Its Board of Regents; NEAL SMATRESK, President; FINLEY GRAVES, Interim Provost and Vice President for Academic Affairs; WARREN BURGGREN, Former Provost and Vice President for Academic Affairs; ARTHUR GOVEN, Former Dean, College of Arts and Sciences; PATRICIA GLAZEBROOK, Former Chair, Department of Philosophy and Religion Studies, Defendants - Appellants

         Appeal from the United States District Court for the Eastern District of Texas

          Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.

          STEPHEN A. HIGGINSON, Circuit Judge:

         A Texas university declined to renew a lecturer's contract. After several extensive but unsuccessful administrative appeals, that lecturer sued the school and its administrators, alleging a deprivation of his property interest in his job without due process and tortious interference with his employment contract. The district court denied summary judgment to the administrators on their immunity defenses. We reverse.


         The University of North Texas is a state institution with a formal tenure track. Plaintiff-appellee Dale Wilkerson was never on that track. He was instead an untenured lecturer in the University's Department of Philosophy and Religion Studies from 2003 to 2014. For the first eight years, he and the University entered separate, one-year teaching contracts. In 2011, Wilkerson became the Philosophy Department's "Principal Lecturer."

         Wilkerson's "Principal Lecturer" contract provided a "temporary, non-tenurable, one-year appointment with a five-year commitment to renew at the option of the University." As he was signing that contract, Wilkerson avers, the department chair (defendant-appellant Patricia Glazebrook) explained that the optional-renewal provision was "a convenience" in place only "in the event a reduction in workforce were necessary" or "in the event of a major policy violation." But the written agreement included this integration clause: "No previous written or oral commitment will be binding on the University except as specified in this letter" and its attachments.

         With his post came a "nine-month base salary." And as the contract explained, "selected [U]niversity policies, procedures and expectations" governed Wilkerson's appointment. Among those policies were the departmental bylaws, which advised Wilkerson that Principal Lecturer contracts "are renewed annually." Along those same lines, the bylaws added that "[l]ecturers may hold full- or part-time appointments of one or multiple years that are renewed pending the departmental annual review process and resource availability, " and that even "[m]ulti-year lecturers are in a temporary, non-tenurable one-year contract with a three to five year commitment to renew at the option of [the University]." The University's constitution echoed that point: "Renewal of term appointments . . . is entirely at the option of the [U]niversity." This "commitment to renew" at the school's "option" meant the University could reappoint Wilkerson without a formal search process requiring him to compete with other candidates. Even so, the bylaws maintained, "[r]eappointment . . . offer letters w[ould] be initiated on an annual basis" and "there shall be no expectation of continued employment beyond the end of the current appointment period."

         Twice the University renewed Wilkerson's contract. It was during his first renewed term-in March 2013-that Wilkerson attended a student-recruitment party hosted by the department's then-Director of Graduate Studies. There, Wilkerson met C.B., a 26-year-old, incoming graduate student.[1] The two had a brief relationship. Several times in June 2013 they met at Wilkerson's house. Twice they kissed. A few weeks later, C.B. joined Wilkerson and another female grad student on an overnight trip from Dallas to Memphis. As the complaint tells it, the three shared a hotel room and a platonic evening.

         By September 2013, Wilkerson had become his department's Director of Graduate Studies[2] and C.B. had matriculated. A few months passed before C.B. filed a formal complaint with the University, contending that Wilkerson sexually harassed her the past summer. Those allegations complicated Wilker-son's renewal process. When prodded why the school had not yet renewed Wilkerson's contract, Glazebrook told him that his renewal hinged on an internal investigation. That inquiry, headed by the University's Office of Equal Opportunity (OEO), found no violation of the University's consensual relationship policy and insufficient evidence of sexual harassment.

         Glazebrook then checked with the University's general counsel and the dean about renewing Wilkerson's contract. Though school policies gave Glazebrook an integral role in deciding whether to hire and retain faculty, they also contemplated that Glazebrook would consult her department's "Personnel Affairs Committee" before recommending Wilkerson's non-renewal. She did not do so. Rather, on July 3, 2014, she sent Wilkerson a letter (on University letterhead) informing him that his appointment would not be renewed. The letter reminded Wilkerson that his position was "renewable annually at the option of the University" and instructed him how to appeal.

         Wilkerson appealed to the College of Arts and Sciences Ad Hoc Grievance Committee. That body permitted Wilkerson, with counsel by his side, to present, object to, and confront witnesses and evidence during a hearing. At this hearing, Glazebrook defended her decision by citing Wilkerson's "poor judgment." The Committee was unpersuaded. It recommended that the college dean "reverse the non-renewal decision, " concluding that "the procedural ByLaws of the Department were violated and . . . Glazebrook provided insufficient evidence to justify the non-renewal."

         Next was the dean's review. Defendant-appellant Arthur Goven studied the Ad Hoc Grievance Committee report, the OEO report, and Glazebrook's recommendation. He also spoke separately with Wilkerson and then Glazebrook. Glazebrook apparently told the dean that Wilkerson had accepted the job as Director of Graduate Studies before meeting C.B. (This supposedly ex parte communication is one of Wilkerson's core objections to his non-renewal process.) Goven ultimately disagreed with the Committee. By his lights, any procedural mishaps did not "offset" Wilkerson's "poor professional judgment, " because Wilkerson's "amorous overtures toward a young woman [he] knew or should have known would be a graduate student . . . placed the [U]niversity in a compromising situation."

         Wilkerson appealed again, this time to the interim Provost and Vice President for Academic Affairs-defendant-appellant Warren Burggren. Burg- gren charged another committee with investigating further. This second committee interviewed Wilkerson, C.B., Glazebrook, Goven, and several other faculty members. It then issued a report, opining that Glazebrook "did not follow due process" because she disregarded the bylaws requiring the Personnel Affairs Committee to appraise her decision. "Nonetheless, " the report observed, "Wilkerson did indeed exercise poor professional judgment in his interactions with [C.B.]." It also found Wilkerson's chief objection-that Dean Goven relied on ex parte statements regarding when Wilkerson accepted the position of Director of Graduate Studies-"irrelevant to the final outcome." As this committee saw it, "[t]he charge of poor judgment would remain whether or not Wilker-son was [Director] because his involvement with [C.B.] was not appropriate given her position as an incoming graduate student and employee in the [Philosophy] Department." Despite nodding toward a "final outcome, " however, the report balked; it offered no view on whether to reappoint Wilkerson.

         By the time this report issued, Finley Graves had already replaced Burg-gren as Provost. Graves reviewed the relevant records-including those Wilkerson gave him-and upheld Glazebrook's decision. Wilkerson got word on March 17, 2015, and commenced this lawsuit.

         Wilkerson alleges, among other things, (1) a claim under 42 U.S.C. § 1983 for deprivation of his property interest in his job without due process of law, and (2) tortious interference with his employment contract.[3] He purports to sue the University administrators in their personal capacities and seeks compensatory and exemplary damages.[4] The district court denied the administrators summary judgment on both the merits and immunity grounds for the § 1983 due-process claim against Burggren, Glazebrook, and Goven; and the tortious interference claim against Glazebrook. See Wilkerson v. Univ. of N. Tex., No. 4:15-CV-00540, 2016 WL 7242766 (E.D. Tex. Dec. 14, 2016).

         This interlocutory appeal broaches only the immunity issues-whether qualified immunity lies against the § 1983 claim, and whether § 101.106(f) of the Texas Tort Claims Act[5] affords governmental immunity against the interference claim. The district court said no on both questions. We respectfully disagree.


         Typically, a party cannot immediately appeal the denial of summary judgment. Brown v. Strain, 663 F.3d 245, 248 (5th Cir. 2011); cf. 28 U.S.C. § 1291. But when that denial is "of a motion for summary judgment based on qualified immunity, " the ruling "is immediately appealable under the collateral order doctrine to the extent that it turns on an issue of law." Melton v. Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc) (quotation marks omitted). So, too, for the denial of immunity under § 101.106(f) of the Texas Tort Claims Act. See Cantu v. Rocha, 77 F.3d 795, 803-04 (5th Cir. 1996) (noting that the denial of state-law immunity is immediately appealable if the doctrine "provides a true immunity from suit and not a simple defense to liability" (quotation marks omitted)); McFadden v. Olesky, 517 S.W.3d 287, 294-95, 298 (Tex. App.-Austin 2017, pet. denied) (holding that § 101.106(f) renders officers "immune from suit" and "completely bar[s]" certain tort claims (collecting cases)). We may hear this interlocutory appeal because it presents no material disputes over what happened or what the relevant documents say-just disagreements over their legal import.

         In this posture, "[i]f the district court found that genuine factual disputes exist, we must accept the plaintiff's version of the facts as true to the extent supported by the summary judgment record." Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 576 (5th Cir. 2009). We therefore "review the complaint and record to determine whether, assuming that all of [plaintiff]'s factual assertions are true, those facts are materially sufficient to establish that defendants" are not immune. Wagner v. Bay City, Tex., 227 F.3d 316, 320 (5th Cir. 2000); see also Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) ("[O]nce a state official . . . asserts the [qualified immunity] defense, the burden shifts to the plaintiff to show that the defense is not available."). Still, we may examine de novo whether any factual disputes are material. Kovacic v. Villarreal, 628 F.3d 209, 211 n.1 (5th Cir. 2010).


         The district court erred in denying the administrators qualified immunity against the § 1983 claim because Wilkerson did not have a clearly established property right.

         Wilkerson's due-process theory requires him to identify a protected life, liberty, or property interest and prove that "governmental action resulted in a deprivation of that interest." Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quotation marks omitted). Though he asserts a federal claim, it is state law that defines his constitutional stake-Wilkerson enjoys a property interest in his lectureship if he has "'a legitimate claim of entitlement' created and defined 'by existing rules or understandings that stem from an ...

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