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
from the United States District Court for the Eastern
District of Texas
SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
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
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" 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.
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."
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. 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.
September 2013, Wilkerson had become his department's
Director of Graduate Studies 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
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.
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."
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
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.
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.
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. He purports to sue the University
administrators in their personal capacities and seeks
compensatory and exemplary damages. 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).
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 affords governmental immunity against the
interference claim. The district court said no on both
questions. We respectfully disagree.
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.
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).
district court erred in denying the administrators qualified
immunity against the § 1983 claim because Wilkerson did
not have a clearly established property right.
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 ...