Wei-Ping Zeng v. Texas Tech Univ Hlth Sci Ctr, et ( 2020 )

Case: 20-50210 Document: 00515631358 Page: 1 Date Filed: 11/09/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 9, 2020
No. 20-50210
Summary Calendar Lyle W. Cayce
Clerk
Wei-Ping Zeng,
Plaintiff—Appellant,
versus
Texas Tech University Health Science Center
at El Paso;
Peter Rotwein; Richard A. Lange;
Beverley Court; Rebecca Salcido,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
No. 3:19-CV-99
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Texas Tech University Health Science Center at El Paso (“Texas
Tech”) fired Dr. Wei-Ping Zeng when, for several months and without
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
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proper authorization, he worked from his West Virginia home instead of the
El Paso lab to which he was assigned. Zeng asserts that his termination was
discriminatory, in violation of both Title VII and the Texas Commission on
Human Rights Act (“TCHRA”), and that it violated his Fourteenth Amend-
ment due process rights. In addition, Zeng puts forth defamation and torti-
ous interference claims. The district court granted defendants’ motion for
summary judgment on all claims. We affirm.
I.
Zeng obtained his Ph.D. in immunology and cell pathology from the
State University of New York at Buffalo, underwent post-doctoral training in
immunology at Yale University, and then entered academia as a faculty mem-
ber at the University of Rochester in 1999. In 2009, Zeng left Rochester to
begin working as an associate professor at Marshall University in West Vir-
ginia, where he was denied tenure in 2016.
On the heels of that denial, Zeng filed a grievance against Marshall and
applied for a research associate position at Texas Tech. He was offered that
position, moved to Texas, and began working under Dr. Haoquon Wu in
2017. Although Zeng rented an El Paso apartment, he retained a house in
West Virginia.
Soon after beginning work in El Paso, Zeng sued Marshall in federal
court in West Virginia. There, as here, Zeng appeared pro se. Needing to be
present for those legal proceedings, and believing that, in any event, he could
work more effectively from home, Zeng asked Wu for permission to work
from West Virginia instead of at the El Paso lab, and Wu acquiesced. At some
point in the ensuing months, Zeng terminated his lease in El Paso and lived
only in West Virginia. He did not tell Wu that he was terminating his El Paso
lease, nor did he inform anyone else at Texas Tech that he was working from
West Virginia in the first place.
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Thus, solely on Wu’s permission, Zeng worked primarily from West
Virginia from early May until early December 2017. Under Texas Tech’s
work-from-home policy, that’s problematic. Texas Tech’s policy requires
that, to work from home, an employee must attain a signed “Telecommuting
Agreement,” which “must have the approval of the employee’s unit head,
the Dean or Director, the appropriate Department’s Vice President, Human
Resources, and President before it can be implemented.” Zeng does not con-
test that, although he received permission from Wu, his work-from-home
arrangement was not approved by the other necessary parties. In the absence
of such an agreement, Texas Tech requires that its employees work “only at
the employee’s regular place of business or assigned duty point unless the
employee . . . has received prior written authorization of the President,” Dr.
Richard Lange, “or his/her designee.”
In November and December 2017, Texas Tech audited the employees
in Zeng’s department, comparing an employee’s timesheets with the number
of times the employee used his or her access badge to enter the building.
Given that Zeng was in West Virginia at the time, his reported hours worked
did not match the number of times he accessed the building. Specifically, the
audit revealed that, although Zeng recorded normal working hours, he did
not access the building on 119 of the 142 days that he was employed from May
to December. Because the department was not aware of Zeng’s work-from-
home arrangement, that discrepancy understandably raised eyebrows.
Beverly Court, senior director of Zeng’s department, scheduled a
December 19 meeting with Zeng “to discuss Timesheets.” Apparently not
understanding the nature of the meeting, Zeng did not respond to the meet-
ing invitation and did not attend. On December 21, Dr. Peter Rotwein, the
chair of Zeng’s department, emailed Wu to inform him of the situation. Wu,
who was visiting China at the time, responded on January 7, explaining that
Zeng was involved in a lawsuit and that Wu had authorized him to “work at
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home for a while.”
On January 8, 2018, Court sent Zeng another meeting request and an
email, this time requesting Zeng to “confirm [he] received [the] email and
will be available to meet.” Zeng replied, informing Court that he was “not
in El Paso” but would “try to come back as soon as possible.” Court re-
sponded the next day, asking when he “plan[ned] to be at work so [they
could] meet.” Zeng vaguely replied that he would let her know when he
returned and told her that “[t]here is something I have to deal with now, but
I will come back as soon as I can.” Later that day Rotwein emailed Zeng,
informing him of the discrepancies revealed in the audit, that he was in vio-
lation of Texas Tech’s work-from-home policy, and requesting that he pro-
vide a record of the work performed when he was not in the office. Zeng sent
Rotwein a summary of that work on January 11, as requested.
On January 12, Court emailed Zeng again, this time informing him that
he was being placed on leave without pay. A week later, Rotwein sent Lange
an email explaining the situation and “request[ing] termination of Dr. Zeng’s
appointment for cause.” About a week after that, Court emailed Zeng with
an attached letter informing him that his employment was terminated effec-
tive January 22.
Zeng sued in state court, and the defendants removed to federal court
on the basis of federal question and supplemental jurisdiction. In his second
amended complaint, Zeng alleged discrimination under Title VII, the
TCHRA, and 42 U.S.C. § 1981, violation of his Fourteenth Amendment due
process rights, tortious interference, and defamation. Both sides sought
summary judgment. The district court granted defendants’ motion for sum-
mary judgment in full and dismissed all claims. Zeng appeals. We affirm.
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II.
A.
Zeng first asserts that his firing was discriminatory, in violation of both
federal and state law. 1 As an initial matter, we disagree with the district court
that Zeng’s TCHRA claims are barred by sovereign immunity. “[A] State
waives [sovereign] immunity when it removes a case from state court to fed-
eral court.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618–
19, 624 (2002). This maxim is in “the context of state-law claims, in respect
to which the State has explicitly waived sovereign immunity from state-court
proceedings.” Id. at 617.
To be sure, “the Constitution permits and protects a state’s right to
relinquish its immunity from suit while retaining its immunity from liability
. . . .” Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 255 (5th Cir. 2005).
Thus, a state may waive its immunity from suit through removal and simul-
taneously retain its immunity from liability.
But that is not the case here. The TCHRA waives Texas’s sovereign
immunity from state-court proceedings. Mission Consol. Indep. Sch. Dist. v.
Garcia, 253 S.W.3d 653, 660 (Tex. 2008). And although the TCHRA does
not “waive sovereign immunity [from suit] in federal court,” 2 the defendants
have done that through removal. Lapides, 535 U.S. at 624.
1
Zeng asserts claims under Title VII (race and nationality), 42 U.S.C. § 1981, and
the TCHRA. “Because these three statutory bases are functionally identical for the
purposes of [Zeng’s] claims, it would be redundant to refer to all of them.” Shackleford v.
Deloitte & Touche, LLP, 190 F.3d 398, 403 n.2 (5th Cir. 1999). Thus, although we dismiss
several claims on technical grounds, the substantive analysis would apply to all claims even
if they remained viable.
2
Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 332 (5th Cir. 2002); see also
Pequeno v. Univ. of Tex. at Brownsville, 718 F. App’x 237, 241 (5th Cir. 2018) (applying Perez
to the TCHRA).
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Put another way, defendants do not enjoy “immunity from liability”
because the TCHRA waived it. Meyers, 410 F.3d at 255. And defendants no
longer enjoy “immunity from suit” because they waived it by removal. Id.;
see also Lapides, 535 U.S. at 624. Thus, defendants waived sovereign immun-
ity for the TCHRA claims in this case. 3
Although there is no sovereign immunity, under the TCHRA only
“employers may be liable for an unlawful employment practice. The Act does
not create a cause of action against supervisors or individual employees.”
Anderson v. Hous. Cmty. Coll. Sys., 458 S.W.3d 633 (Tex. App.—Houston [1st
Dist.] 2015, no pet.) (cleaned up). Similarly, although Congress abrogated
sovereign immunity for state actors in Title VII, Fitzpatrick v. Bitzer, 427 U.S.
445, 447–48 (1976), a plaintiff cannot sue both an employer and its employees
in their official capacity under Title VII. To do so would subject the em-
ployer to double liability, because “a Title VII suit against an employee is
actually a suit against the corporation.” Indest v. Freeman Decorating, Inc.,
164 F.3d 258, 262 (5th Cir. 1999). Thus, because Zeng opts to sue Texas
Tech under Title VII and the TCHRA, he may not simultaneously sue the
individual defendants.
So, where does that leave us? After we knock out the improper claims
and revive the TCHRA claim, Zeng retains three operable discrimination
3
None of the cases on which the district court or defendants rely is in conflict with
that conclusion. Those cases involve instances in which the (1) the plaintiff raised waiver-
by-removal argument for the first time on appeal and thus waived the argument itself, Perez,
307 F.3d at 331–32, (2) the plaintiff sued in federal court in the first instance and there was
no waiver-by-removal argument to be made, Pequeno, 718 F. App’x at 240–41, or (3) the
plaintiff averred that “removal waives immunity entirely” and attempted to rely on
removal alone to waive immunity from both suit and liability, Skinner v. Gragg,
650 F. App’x 214, 218 (5th Cir. 2016) (per curiam). Meyers did not reach the question of
whether the state “retained a separate immunity from liability . . . according to [the] state’s
law.” Meyers, 410 F.3d at 255.
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causes of action. He asserts Title VII and TCHRA discrimination claims
against Texas Tech. Additionally, he maintains § 1981 claims against the
individual defendants. Because those “three statutory bases are functionally
identical for the purposes of [Zeng’s] claims,” our analysis below is sufficient
to dispose of all claims together. Shackleford, 190 F.3d at 403 n.2.
For cases of intentional discrimination based on circumstantial evi-
dence, such as this one, we apply the familiar McDonnell-Douglas burden-
shifting framework. 4 Under that framework, a plaintiff must first establish a
prima facie case of discrimination, which requires him to show that “(1) he is
a member of a protected class, (2) he was qualified for the position at issue,
(3) he was the subject of an adverse employment action, and (4) he was
treated less favorably because of his membership in that protected class than
were other similarly situated employees who were not members of the
protected class, under nearly identical circumstances.” Lee v. Kan. City S.
Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009).
If the plaintiff establishes a prima facie case, the burden of production
“shifts to the employer to articulate a legitimate, nondiscriminatory or non-
retaliatory reason for its employment action.” McCoy, 492 F.3d at 557. If the
employer is able to do so, then the burden shifts back to the plaintiff to show
“that the employer’s proffered reason is not true but instead is a pretext for
the real discriminatory or retaliatory purpose.” Id. Because Zeng fails to
make out a prima facie case of discrimination, we need not determine whether
his violation of company policy provided a legitimate, nondiscriminatory
reason for Texas Tech’s employment decision.
Nobody contests that Zeng is a member of a protected class or that he
4
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).
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was the subject of an adverse employment action. Instead, defendants assert
that Zeng fails to make his prima facie case because he fails to offer evidence
demonstrating that he was qualified for the position, and, even if he was, he
was not treated less favorably than others under nearly identical circum-
stances. We assume that Zeng, as a Ph.D. in immunology, was qualified for
the research assistant position. Our focus is instead on the fourth prima facie
requirement—whether Zeng was treated unfavorably because of his pro-
tected status. He wasn’t.
Zeng’s prima facie case turns on whether the other employees that he
identifies as comparators were similarly situated to him. Lee, 574 F.3d at 259.
We construe “similarly situated narrowly, requiring the employees’ situa-
tions to be nearly identical.” West v. City of Hous., 960 F.3d 736, 740 (5th
Cir. 2020) (quotation omitted). “[E]mployees who have different work re-
sponsibilities or who are subjected to adverse employment action for dis-
similar violations are not similarly situated.” Lee, 574 F.3d at 259–60. More-
over, “the conduct the employer points to as the reason for the firing must
have been ‘nearly identical’ to ‘that of the proffered comparator who alleg-
edly drew dissimilar employment decisions.’” Garcia v. Prof’l Contract
Servs., Inc., 938 F.3d 236, 244 (5th Cir. 2019) (quoting Lee, 574 F.3d at 260).
Zeng points to three groups as comparators: (1) Alexa Montoya and
Christopher Lopez; (2) eleven other “employees with serious policy viola-
tions [who] were not terminated”; and (3) a final group of employees, all of
whom were terminated but, according to Zeng, received “multiple oppor-
tunities and assistance to correct their behaviors prior to termination.” We
address each in turn.
We begin with Montoya and Lopez. Both of them worked in Zeng’s
department and, like Zeng, reported work hours that did not match their
access badge data. Montoya reported normal working hours on 83 days when
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she did not use her badge to access the building, and Lopez reported normal
working hours on 24 days when he did not use his badge to access the build-
ing. But that resemblance aside, those two are not similarly situated to Zeng.
As an initial matter, both Montoya and Lopez cooperated with Court
and others at Texas Tech to resolve the issue once the discrepancies were
brought to light. Zeng, on the other hand, was given multiple opportunities
to meet with Court to discuss his situation. On each occasion, Zeng either
declined the opportunity or failed to respond at all. Therefore, even if Mon-
toya’s or Lopez’s initial violations were “nearly identical” to Zeng’s, the
totality of their conduct was not. 5
In any event, the violations were not themselves “nearly identical.”
First, Montoya’s and Lopez’s absences were less severe than Zeng’s 119-day
absence. Additionally, those absences were based on conduct distinct from
Zeng’s. Montoya, for example, told her supervisor that she was unable to
swipe her badge to enter the building because her badge was not authorized
for the proper times. Instead, although her badge data did not reflect it, Mon-
toya maintained that she was in the building at the reported times after being
let in by others coming and going. Similarly, Lopez informed Court that he
failed to swipe his badge on occasion because “he was often walking into work
as people were leaving and did not need to use his card to gain access to the
building.”
Thus, the violations by Lopez and Montoya were not “nearly identi-
cal” to Zeng’s. To be sure, the violations were discovered by the same pro-
5
See Lee, 574 F.3d at 260 (“If the ‘difference between the plaintiff’s conduct and
that of those alleged to be similarly situated accounts for the difference in treatment received
from the employer,’ the employees are not similarly situated for the purposes of an employ-
ment discrimination analysis.” (quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221
(5th Cir. 2001))).
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cess: the internal audit. But the nature of the violations themselves—
improper use of the access badge as distinguished from working remotely
from West Virginia without proper authorization—is patently different.
Next, Zeng points to a group of employees that violated Texas Tech’s
policies but were not terminated. That collection of employees includes a
billing associate, two clinical assistants, a senior medical secretary, a research
administrator, and a mechanic (among other similarly disparate positions).
The violations themselves are just as dissimilar, ranging from tardiness to
sexual harassment. The only discernable commonalities in the group is that
they worked for Texas Tech, were somewhere below Lange in the chain-of-
command, violated some rule at some point during their employment, and
were not fired for that violation. Zeng doesn’t assert that they shared “the
same job or responsibilities” or had “comparable violation histories.” West,
960 F.3d at 740. Therefore, we agree with the district court that they were
not similarly situated to Zeng.
Finally, Zeng offers a group of thirteen employees who were termin-
ated under Lange but, unlike Zeng, “were offered multiple opportunities and
assistance to correct their behaviors prior to termination.” Like the previous
group, this diverse bunch includes a wide array of positions, including a
coding and reimbursement specialist, a patient services specialist, and a sen-
ior business assistant. And, again like the previous group, the violations range
broadly. It is true that the employees on that list received multiple “strikes”
before being fired. But because all of them had “different work responsibili-
ties” and were “subjected to adverse employment action[s] for dissimilar
violations,” that is inapposite. Lee, 574 F.3d at 259–60.
Zeng fails to demonstrate that “he was treated less favorably because
of his membership in [a] protected class than were other similarly situated
employees who were not members of the protected class, under nearly iden-
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tical circumstances.” Id. at 259. Therefore, he fails to make his prima facie
case of discrimination under the McDonnell-Douglas framework. We affirm
summary judgment on the discrimination claims.
B.
Zeng asserts, under 42 U.S.C. § 1983, that defendants deprived him
of a property and liberty interest without adequate procedure, violating his
Fourteenth Amendment due process rights. But because Zeng was not
deprived of a protected property or liberty interest, he was not owed any
constitutional due process.
“The first inquiry in every due process challenge is whether the plain-
tiff has been deprived of a protected interest in ‘property’ or ‘liberty.’ Only
after finding the deprivation of a protected interest do we look to see if the
State’s procedures comport with due process.” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 59 (1999) (citations omitted). In the context of
employment, a property interest arises “only when a legitimate right to con-
tinued employment exists.” McDonald v. City of Corinth, 102 F.3d 152, 155
(5th Cir. 1996). A liberty interest arises “only when the employee is dis-
charged in a manner that creates a false and defamatory impression about
him.” Bledsoe v. City of Horn Lake, 449 F.3d 650, 653 (5th Cir. 2006) (cleaned
up). We address the two interests in turn.
1.
“State law controls the analysis of whether [an employee] has a prop-
erty interest in his employment.” McDonald, 102 F.3d at 155. In Texas, an
at-will employment state, “employment may be terminated by the employer
or the employee at will, for good cause, bad cause, or no cause at all.” Mont-
gomery Cty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). There-
fore, to establish a property interest—“a legitimate right to continued
employment”—an employee must show that the at-will presumption has
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been altered. McDonald, 102 F.3d at 155; see also Muncy v. City of Dall.,
335 F.3d 394, 398 (5th Cir. 2003).
That presumption can be changed by “a specific agreement to the
contrary.” Brown, 965 S.W.2d at 502. To do so, “the employer must un-
equivocally indicate a definite intent to be bound not to terminate the em-
ployee except under clearly specified circumstances. . . . An employee who
has no formal agreement with his employer cannot construct one out of
indefinite comments, encouragements, or assurances.” Id.
Zeng signed an “Employment Acknowledgment” form that explicitly
stated “a contract was not being offered” and “all employment at the Texas
Tech University Health Sciences Center is employment-at-will.” To estab-
lish a property interest, then, that status must have been modified. To that
end, Zeng asserts that he and Wu formed a “definitive understanding” that
he “would have continued employment.” We disagree.
To support his position, Zeng asserts little more than conclusory
statements that an understanding existed. He points first to two discussions
with Wu regarding the stability of the position based on research-grant
funding. He then speculates that Wu did not intend to fire him and, there-
fore, there was an understanding between the two. None of these instances
“unequivocally indicate[s] a definite intent to be bound not to terminate the
employee except under clearly specified circumstances.” Brown, 965 S.W.2d
at 502.
As an initial matter, the first set of conversations on which Zeng relies
took place in the interview phase, i.e., before he signed the employment
acknowledgment that expressly stated his employment was at-will. Those
discussions could not have modified an employment arrangement that did
not yet exist.
Irrespective of when the conversations occurred, Zeng can point to no
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“expressed” or “clear and specific” agreement to modify his employment
from at-will. El Expreso, Inc. v. Zendejas, 193 S.W.3d 590, 594 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (quotation omitted). The best he can do
is state that Wu told him there was sufficient funding to sustain the position
for several years. At most, Wu’s statements regarding the stability of funding
were “indefinite . . . assurances.” Brown, 965 S.W.2d at 502.
Moreover, whether Wu intended to fire Zeng is irrelevant. That a
supervisor does not intend to fire an employee does not compel the con-
clusion that he or she is “bound not to terminate the employee . . . .” Brown,
965 S.W.2d at 502. It shows only that the supervisor does not wish to do so,
not that he or she could not do so if desired.
Zeng was hired as an at-will employee. Nothing changed that. He had
no “legitimate right to continued employment” and, therefore, no protected
Fourteenth Amendment property interest. McDonald, 102 F.3d at 155.
2.
Zeng asserts that his termination infringed on a liberty interest, which,
like property interests, can trigger procedural due process rights. When “the
government discharges an employee amidst allegations of misconduct, the
employee may have a procedural due process right to notice and an oppor-
tunity to clear his name.” Bledsoe, 449 F.3d at 653. Those rights are triggered
“only when the employee is discharged in a manner that creates a false and
defamatory impression about him and thus stigmatizes him and forecloses
him from other employment opportunities.” Id. (quotation omitted).
We employ a seven-element “stigma-plus-infringement” test to de-
termine whether a government employee is entitled to a remedy under
§ 1983. Id. Zeng must demonstrate that “(1) he was discharged; (2) stig-
matizing charges were made against him in connection with the discharge;
(3) the charges were false; (4) he was not provided notice or an opportunity
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to be heard prior to the discharge; (5) the charges were made public; (6) he
requested a hearing to clear his name; and (7) the employer denied the
request.” Id. He cannot do so.
To the extent that Zeng reasserts his argument made in the district
court that Texas Tech infringed on his liberty interests by classifying his
termination as for “misconduct,” that claim fails here as it did there. It is
undisputed that Zeng violated Texas Tech policy when he worked from
West Virginia. He fails element three, then, because the “charges were [not]
false.” Id.
Zeng also claims that Texas Tech’s determination to designate him as
not eligible for rehire (“NEFR”) was “both adverse and stigmatizing” and,
therefore, infringed his liberty interest. That assertion fails for several rea-
sons. The meaning of an NEFR designation is published in the Texas Tech
University System regulations. There, it states the criteria for NEFR: “The
individual engaged in behavior that constitutes serious misconduct including
but not limited to fraud, theft, violence/threat of violence, alcohol/drug pol-
icy violation, moral turpitude, sexual misconduct, or other conduct demon-
strating unfitness for employment.” Because Zeng was fired for misconduct,
he “engaged in . . . conduct demonstrating unfitness for employment,” and
it fails Bledosoe’s third element. Id.
Moreover, Zeng provides no evidence that the “the charges were
made public.” Id. 6 To be sure, the NEFR designation was disclosed to a
reference-check company that was hired at Zeng’s behest. But because
“there is no liability when . . . the plaintiff cause[s] [the charges] to be made
6
As described above, the meaning of an NEFR designation is publicly available.
But Zeng’s NEFR designation, not what that designation generally means, is what must
have been “made public.” Bledsoe, 449 F.3d at 653.
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public,” that is insufficient. Hughes v. City of Garland, 204 F.3d 223, 228
(5th Cir. 2000) (quotation omitted). Zeng can point to no other instances in
which the NEFR designation was made public. Therefore, his assertion also
fails Bledsoe’s fifth element. Bledsoe, 449 F.3d at 653.
Because Zeng did not have a property interest in continued employ-
ment, and because he cannot show that his termination infringed on a liberty
interest, he was not deprived of any procedural due process rights. There-
fore, we affirm summary judgment on his § 1983 claims.
C.
Zeng puts forth defamation and tortious interference claims under
Texas tort law. He posits that the individual defendants defamed him by
labelling him as terminated for misconduct and NEFR. He further contends
that those labels were communicated to prospective employers, committing
tortious interference with prospective employment.
These claims border on frivolity. Substantively, Zeng cannot show
that Texas Tech published a false statement, which is a required element of
defamation. In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015). As explained
above, the alleged defamatory statements were not false, nor did Texas Tech
make them public. Neither can Zeng demonstrate that Texas Tech’s actions
were “independently tortious or unlawful,” an element of a tortious interfer-
ence claim. Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909,
923 (Tex. 2013). And, in any event, the claims are barred by sovereign
immunity.
The Texas Tort Claims Act (“TTCA”) provides a “limited waiver of
[sovereign] immunity for certain suits.” Garcia, 253 S.W.3d at 655. Recov-
ery against a government employee is barred “when suit is filed against an
employee whose conduct was within the scope of his or her employment and
the suit could have been brought against the governmental unit.” Id. at 657
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(citing Tex. Civ. Prac. & Rem. Code § 101.106(f)). Thus, Zeng seeks
to avoid sovereign immunity by claiming that defendants’ conduct was not
within the scope of their employment or was otherwise ultra vires.
To be within the scope of employment, there must be “a connection
between the employee’s job duties and the alleged tortious conduct.” Lav-
erie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017). That connection may be
satisfied “even if the employee performs negligently or is motivated by ulter-
ior motives or personal animus so long as the conduct itself was pursuant to
her job responsibilities.” Id. The district court found, and Zeng now seem-
ingly concedes, that “there is a clear connection between the conduct at issue
in [Zeng’s] tort claims—essentially, how the Individual Defendants categor-
ized and decided his termination—and the Individual Defendants’ job duties
as administrators of [his] workplace.” We agree.
“To fall within th[e] ultra vires exception, a suit must not complain of
a government officer’s exercise of discretion, but rather must allege, and
ultimately prove, that the officer acted without legal authority or failed to
perform a purely ministerial act.” City of El Paso v. Heinrich, 284 S.W.3d
366, 372 (Tex. 2009). Acting “without legal authority” means that the gov-
ernment actor must have “violated statutory or constitutional provisions.”
Lazarides v. Farris, 367 S.W.3d 788, 800 (Tex. App.—Houston [14th Dist.]
2012, no pet.). Zeng alleges only violations of Texas Tech policy, not “stat-
utory or constitutional provisions.” Id. 7 Therefore, that assertion is insuffi-
7
We recognize that because Texas Tech is a state university, some of its policies—
those promulgated by the Board of Regents—may “have the same force as an enactment
of the legislature” for purposes of waiving sovereign immunity. Hall v. McRaven,
508 S.W.3d 232, 235 (Tex. 2017). But not every university policy meets that criterion. See
Univ. of Hous. v. Barth, 403 S.W.3d 851, 856 (Tex. 2013). Because Zeng provides “no evi-
dence that the [relevant policy was] enacted by the Board of Regents,” those policies are
not “law” for purposes of the ultra vires or purely-ministerial-act exceptions to sovereign
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cient to sustain a claim under the ultra vires exception.
Purely “[m]inisterial acts are those where the law prescribes and
defines the duties to be performed with such precision and certainty as to
leave nothing to the exercise of discretion or judgment.” Sw. Bell Tel., L.P.
v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015) (quotation omitted). Again,
Zeng asserts only duties imposed by Texas Tech policy, not law. Therefore,
he can demonstrate no failure to perform purely ministerial acts on behalf of
the defendants.
In sum, Zeng’s tort claims are barred by sovereign immunity under
the TTCA. Even if they weren’t, his substantive arguments lack merit. We
affirm the summary judgment in favor of the individual defendants on the
tort claims.
D.
Zeng appeals the denial of his motion for supplemental discovery.
Rule 56(d) of the Federal Rules of Civil Procedure states that, following a
motion for summary judgment, if the nonmoving party “shows . . . that, for
specified reasons, it cannot present facts essential to justify its opposition,
the court may” permit additional discovery. Fed. R. Civ. P. 56(d). “We
review a district court’s denial of a Rule 56(d) motion for abuse of discre-
tion.” Am. Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887, 894
(5th Cir. 2013) (per curiam). We find none.
Motions for additional discovery under Rule 56(d) are “broadly
favored and should be liberally granted because the rule is designed to safe-
guard nonmoving parties from summary judgment motions that they cannot
immunity. Id. at 855–57.
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adequately oppose.” Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010)
(quotation omitted). Even still, the nonmoving party must demonstrate
“how the emergent facts, if adduced, will influence the outcome of the pend-
ing summary judgment motion.” Biles, 714 F.3d at 894 (quotation omitted).
Therefore, “we generally assess whether the evidence requested would
affect the outcome of a summary judgment motion.” Smith v. Reg’l Transit
Auth., 827 F.3d 412, 423 (5th Cir. 2016).
Zeng sought to discover Montoya’s and Lopez’s “timesheets and the
records of [their] access card use” for an additional period of time. Accord-
ing to Zeng, “[i]n order to assess the seriousness” of their violations for the
purposes of establishing that he was similarly situated to them, it was
“important to know how many claimed workdays without access card use”
they had accrued. 8 As explained above, however, the number of claimed
workdays without access card use—even if equal to or greater than Zeng’s
119-day absence—would not make Montoya or Lopez similarly situated to
him. The violations themselves are different. One is the improper use of an
access badge; the other is working from another part of the country without
proper authorization.
Because the additional discovery would not have “affect[ed] the
outcome of [the] summary judgment motion,” the district court did not
abuse its discretion in denying the motion. Id.
E.
Zeng appeals the denial of his motion for sanctions for spoliation of
8
On appeal, Zeng recharacterizes the aims of his motion. He now intimates that
additional discovery may somehow have uncovered that Montoya and Lopez were not
working at all, rather than only failing to use their access badges. Because the additional
discovery that Zeng sought would not have uncovered that information, we need not
address its relevance.
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evidence. He asserts that Texas Tech deleted his work email account history
in violation of its duty to preserve evidence. The district court determined
that the motion failed because Zeng could not make the requisite showing of
bad faith. We review that decision for abuse of discretion. Guzman v. Jones,
804 F.3d 707, 713 (5th Cir. 2015). Once again, we find none.
“Spoliation of evidence is the destruction or the significant and mean-
ingful alteration of evidence.” Id. (quotation omitted). When that occurs,
we permit an “adverse inference” against the offending party “only upon a
showing of ‘bad faith’ or ‘bad conduct.’” Id. (quoting Condrey v. SunTrust
Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005)). The duty to preserve
evidence attaches only “when the party has notice that the evidence is rele-
vant to the litigation or should have known that the evidence may be rele-
vant.” Id.
It is uncontested that the emails were deleted on March 3, 2018. 9 The
only evidence Zeng posits may have placed Texas Tech on notice of the liti-
gation before that date is a complaint sent to Rotwein and an exchange of
emails with Salcido and Lange. Zeng sent Rotwein a letter expressing his
regret that he had been terminated, explaining the stain the termination
would have on his “career record,” stating that the decision would “reflect
poorly on the university,” and asking Rotwein to reconsider. He then for-
warded that letter to Rebecca Salcido and Lange.
Nothing in that letter could be construed as placing Texas Tech on
notice that Zeng would even file suit, much less that his emails would be
relevant to that litigation. Never was there a mention of discrimination or
9
It appears that the emails were deleted per a general Texas Tech policy, under
which emails are deleted ninety days after an employee is terminated. That factual asser-
tion was uncontested until Zeng now claims that “no such policy was produced.” Even if
there was no policy in place, both sides agree that the emails were deleted on March 3.
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procedural failures, nor the slightest intimation of further action. The district
court did not abuse its discretion when it determined that Texas Tech did not
act in bad faith when it deleted Zeng’s emails.
* * *
Zeng broke the rules, his employer found out, and he got fired. That
may be disappointing to him, but that doesn’t make it illegal. The summary
judgment is AFFIRMED.
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