Texas A&M University, Mark Hussey, Ph.D. in His Official Capacity as Interim President of Texas A&M and David Vaught, Ph.D., Individually and in His Official Capacity as Department Head of Department History v. Ernest Starks, Ph.D. ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00035-CV
TEXAS A&M UNIVERSITY, MARK HUSSEY, PH.D.
IN HIS OFFICIAL CAPACITY AS INTERIM PRESIDENT
OF TEXAS A&M AND DAVID VAUGHT, PH.D.,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS
DEPARTMENT HEAD OF DEPARTMENT HISTORY,
Appellants
v.
ERNEST STARKS, PH.D.,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 14-001701-CV-272
OPINION
In this accelerated appeal, Texas A&M University, Mark Hussey, Ph.D., in his
official capacity as Interim President of Texas A&M University, and David Vaught, Ph.D.,
individually and in his official capacity as Department Head of the Department of
History, appeal the trial court’s interlocutory order denying their plea to the jurisdiction
and motion for summary judgment. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5),
(8) (West Supp. 2015). We will affirm in part and reverse in part.
Background
Ernest Starks, Ph.D., has sued TAMU, Hussey, and Vaught, alleging the following:
He is an African-American male over the age of forty and a full professor in TAMU’s
history department; he has been a TAMU faculty member for nearly twenty years. As a
faculty member, he has spoken out regarding TAMU’s “unwillingness to establish a
workplace that reflects equal and fair opportunity for African-Americans within its
faculty and administrative ranks.” He has spoken out at faculty meetings and to faculty
colleagues about the lack of racial and ethnic diversity within the Department of History
specifically. Furthermore, as a TAMU professor, he has experienced the following
“recent acts of discrimination and retaliation”:
 On April 12, 2013, Starks applied for the position of Faculty Ombuds Officer at
TAMU, and the job announcement indicated that the position was to be filled
by a full professor. At the time, Clare Gill, a younger white female, was an
associate professor. In September 2013, Gill was promoted to full professor,
and TAMU then announced that she had been selected for the Faculty Ombuds
Officer position. “The decision to select a less qualified, white, younger, female
over Starks, was an act of discrimination and retaliation towards him.”
 On August 30, 2013, in “an act of discriminatory animus,” Vaught issued a
written reprimand to Starks, falsely accusing him of violating departmental
guidelines regarding the preparation of syllabi. Starks tried to discuss the
matter with Vaught, but Vaught instead prepared another written document
that he then circulated to other administrators and faculty. The document
reiterated the false allegations about the syllabi, threatened Starks’s future
teaching of certain courses, and stated that Starks’s conduct would be
considered in future performance reviews. This reaction to a problem with
syllabi was unprecedented.
Tex. A&M Univ. v. Starks Page 2
 After filing his Texas Workforce Commission charge of discrimination against
TAMU, Starks received an unfairly negative Annual Merit Review and
Evaluation for the 2013 Academic Year. To correct his work performance
record, Starks provided the Department with a written rebuttal to the Review
and made a request that Vaught retract the inaccurate portions of the Review.
Vaught refused and continued to take steps to discredit Starks, harm his
reputation, and prevent advancement to a high-level position in TAMU
administration.
 Because of his “animus towards African-Americans,” Vaught has refused to
appoint Starks to any departmental committees or programs, despite Starks’s
willingness to serve and despite other non-African-American faculty members
being appointed to serve on multiple committees in an academic year. “Not
being allowed to serve in such a role negatively impacts [Starks’s] ability to
earn merit increases and be considered for advancement to top tier
administrative positions.”
Based on the foregoing allegations, Starks has asserted causes of action against
TAMU, Hussey, and Vaught for employment discrimination and retaliation in violation
of sections 21.051 and 21.055 of the Labor Code. Starks has also asserted free-speech
retaliation claims against Hussey and Vaught. Starks seeks monetary damages from
TAMU and equitable relief from Hussey and Vaught.
TAMU, Hussey, and Vaught (collectively, Appellants) filed a plea to the
jurisdiction and motion for summary judgment, which the trial court denied.
TAMU’s Plea to the Jurisdiction
In Appellants’ first issue, TAMU contends that the trial court erred in denying its
plea to the jurisdiction because it demonstrated that Starks presented no admissible
evidence establishing that he timely exhausted his administrative remedies. More
specifically, TAMU argues that it demonstrated that (1) the only allegation by Starks that
qualifies as an “adverse employment action” and could therefore potentially support
Tex. A&M Univ. v. Starks Page 3
Starks’s discrimination claim is the denial of the Faculty Ombuds Officer position and (2)
Starks failed to establish that he filed a charge of discrimination within 180 days of being
informed of the denial of the Faculty Ombuds Officer position.
We review a trial court’s ruling on a plea to the jurisdiction de novo.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
When a party has filed a plea to the jurisdiction challenging the pleadings,
a reviewing court must construe the pleadings liberally in favor of the
pleader and look to the pleader’s intent. See id. If the facts alleged
affirmatively demonstrate the trial court’s jurisdiction to hear the cause, the
plea to the jurisdiction must be denied. See id. If the pleadings do not
contain sufficient facts to affirmatively demonstrate the trial court’s
jurisdiction, but do not affirmatively demonstrate incurable defects in the
jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should
be afforded the opportunity to amend. See id. If the pleadings affirmatively
negate the existence of jurisdiction, then a plea to the jurisdiction may be
granted without allowing an opportunity to amend. See id. at 227.
If in its plea to the jurisdiction a party challenges the existence of
jurisdictional facts, the reviewing court considers relevant evidence
submitted by the parties when necessary to resolve the jurisdictional issues
raised, as the trial court is required to do. See id. If the evidence creates a
fact question regarding the jurisdictional issue, then the plea to the
jurisdiction must be denied. See id. at 227-28. However, if the relevant
evidence is undisputed or fails to raise a fact question on the jurisdictional
issue, then the court rules on the plea to the jurisdiction as a matter of law.
Id. at 228. In ruling on a plea to the jurisdiction, a court does not consider
the merits of the parties’ claims. See id. at 226-28; County of Cameron v.
Brown, 80 S.W.3d 549, 555 (Tex. 2002).
Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 321 S.W.3d 1, 3-4 (Tex. App.—Houston
[14th Dist.] 2008), aff’d, 320 S.W.3d 829 (Tex. 2010).
We begin with the contention that Starks failed to establish that he filed a charge
of discrimination within 180 days of being informed of the denial of the Faculty Ombuds
Officer position. Section 21.202 of the Labor Code states, “A complaint under this
subchapter must be filed not later than the 180th day after the date the alleged unlawful
Tex. A&M Univ. v. Starks Page 4
employment practice occurred.” TEX. LAB. CODE ANN. § 21.202 (West 2015). The timely
filing of a complaint is mandatory, and when the defendant is a governmental entity, the
failure to timely file is a jurisdictional bar to suit. Prairie View A & M Univ. v. Chatha, 381
S.W.3d 500, 514 (Tex. 2012). The 180-day limitations period begins when the employee is
informed of the allegedly discriminatory employment decision. Specialty Retailers, Inc. v.
DeMoranville, 933 S.W.2d 490, 493 (Tex. 1996).
Starks was informed that he was not awarded the Faculty Ombuds Officer position
on June 29, 2013. The 180-day limitations period thus ended on December 26, 2013. In
support of their plea to the jurisdiction, Appellants submitted a copy of Starks’s formal
“Charge of Discrimination” that shows that it was received by the Texas Workforce
Commission, Civil Rights Division, on December 31, 2013. TAMU has therefore shown
that Starks did not file his formal “Charge of Discrimination” within 180 days of being
informed of the denial of the Faculty Ombuds Officer position.
The supreme court has held, however, that, to satisfy the timeliness requirement,
a sworn charge of discrimination filed outside the 180-day limitations period can relate
back to the date that the plaintiff filed the employment intake questionnaire. See Hennigan
v. I.P. Petroleum Co., 858 S.W.2d 371, 373 (Tex. 1993) (verified complaint related back to
and satisfied any deficiencies in unverified questionnaire that was timely filed); Tex. Tech
Univ. v. Finley, 223 S.W.3d 510, 515 (Tex. App.—Amarillo 2006, no pet.) (charge deemed
timely even though dated after deadline because plaintiff’s initial complaint letter, which
satisfied requirements of proper complaint, filed before deadline). Starks claims that the
Tex. A&M Univ. v. Starks Page 5
evidence shows that although his formal “Charge of Discrimination” was not filed until
December 31, 2013, his original complaint was filed on or about November 4, 2013.
After Appellants filed their plea to the jurisdiction and motion for summary
judgment, Starks filed his first amended petition with exhibits attached. See State v. BP
Am. Prod. Co., 290 S.W.3d 345, 349-50 (Tex. App.—Austin 2009, pet. denied) (“In resolving
the jurisdictional challenges presented by the plea, we may … consider evidence that the
pleader has attached to its petition or submitted in opposition to the plea.”). Starks also
filed a response to the plea to the jurisdiction and motion for summary judgment, with
exhibits attached, and a sur-reply to the Appellants’ reply to his response to the plea to
the jurisdiction and motion for summary judgment, with exhibits attached. Starks points
in part to the following evidence in the exhibits to show that his complaint was filed on
or about November 4, 2013:
(1) a transmittal letter, dated November 4, 2013, from Starks’s counsel to “Intake
Officer, Texas Workforce Commission, Civil Rights Division, 101 East 15th
Street, #144T, Austin, TX 78778-0001,” stating that it was sent via email to
EEOIntake@twc.state.tx.us and via certified mail, return receipt requested. The
letter states, “Re: Dr. Ernest Starks – Texas A&M University Department of
History – Revised.” The letter also states, “Please find enclosed Dr. Starks’s
Intake Questionnaire and Charge of Discrimination. A Charge was submitted
on behalf of Dr. Starks on Friday, November 1, 2013. Please replace that Charge
with this document.”
(2) the “Employment Discrimination Complaint Form” from the Texas Workforce
Commission, Civil Rights Division, which lists Starks as the complainant. The
form states that it is to be returned by email to EEOIntake@twc.state.tx.us. It
lists the mailing address as 101 East 15th Street, #144T, Austin, TX 78778-0001.
A document entitled “Charge of Discrimination,” dated October 31, 2013, is
incorporated and attached to the “Employment Discrimination Complaint
Tex. A&M Univ. v. Starks Page 6
Form.” The “Charge of Discrimination” details Starks’s discrimination
complaints against TAMU and is signed by Starks.1
(3) the USPS “green card” addressed to “Intake Officer, Texas Workforce
Commission, Civil Rights Division, 101 East 15th Street #144T, Austin, TX
78778-0001” that shows something was received by the Texas Workforce
Commission on November 7, 2013.
TAMU responds that this evidence does not establish that Starks filed anything
within the requisite time limit because:
(1) “the November 4, 2013 transmittal letter, which states that the law firm has
‘enclosed Dr. Starks’ Intake Questionnaire and Charge of Discrimination,’ does
not include the certified mail article number found on the ‘green card’, nor does
it include a date stamp from the TWCCRD”;
(2) while the “green card” “shows that a TWCCRD Intake Officer received
something on or about November 7, 2013, nothing on that ‘green card’ or the
certified mail receipt demonstrates that it was an intake questionnaire from
Starks”; and
(3) “the ‘Employment Discrimination Complaint Form,’ that allegedly
accompanied the November 4, 2013 transmittal letter, does not include any
information in the section entitled, ‘DATE RECEIVED’ which would
demonstrate exactly when the form was received by the TWCCRD.”
As support for its argument, TAMU also relies on Tex. Dep’t of Pub. Safety v.
Alexander, 300 S.W.3d 62 (Tex. App.—Austin 2009, pet. denied). In Alexander, the sixteen
plaintiffs were required to file their charges of discrimination no later than May 29, 2002.
Id. at 70. In response to a plea to the jurisdiction, the plaintiff in question presented as
evidence: (1) a copy of her intake questionnaire, signed by her and dated on May 21,
2002, and (2) an affidavit stating that she “filed a charge of discrimination” concerning
1This is not the formal “Charge of Discrimination” mentioned above that the Texas Workforce
Commission, Civil Rights Division, received from Starks on December 31, 2013.
Tex. A&M Univ. v. Starks Page 7
the alleged discriminatory action on or before May 21, 2002. Id. at 75. The court held that
this evidence was insufficient to show that the plaintiff filed her questionnaire before the
180-day deadline. Id. at 76. The court stated, “[T]here must be something else in the
record to create a logical bridge between the completed intake questionnaire and the
timely filing of that questionnaire.” Id.
We believe that, in this case, the transmittal letter and USPS “green card” provide
the necessary connection. The transmittal letter states that “Dr. Starks’s Intake
Questionnaire” and “Charge of Discrimination” were sent to the Intake Officer at the
Texas Workforce Commission, Civil Rights Division, on November 4, 2013 via email and
certified mail, return receipt requested. The email and mailing addresses listed on the
transmittal letter for the Intake Officer at the Texas Workforce Commission, Civil Rights
Division, are the same email and mailing addresses provided on the “Employment
Discrimination Complaint Form” as the proper addresses for where to send the
completed form. The USPS “green card” then shows that something was received via
certified mail, return receipt requested, at that proper mailing address by the Texas
Workforce Commission on November 7, 2013. While this evidence may not conclusively
establish that Starks’s “Employment Discrimination Complaint Form,” along with the
incorporated and attached “Charge of Discrimination,” were received and filed by the
Texas Workforce Commission, Civil Rights Division, on November 7, 2013, the evidence
certainly creates a fact question regarding it. Cf. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex.
1987) (explaining that Texas Rule of Civil Procedure 21a regarding service sets up
Tex. A&M Univ. v. Starks Page 8
presumption that letters and notices, when properly addressed, stamped, and mailed, are
presumed to have been duly received by addressee).
We therefore conclude that based on the relation-back doctrine, the evidence
creates a fact question as to whether a “complaint” was filed within the 180-day
limitations period. Because there is a fact issue, the trial court did not err in denying
TAMU’s plea to the jurisdiction based on the ground that Starks failed to timely exhaust
his administrative remedies on his discrimination claim. See Kirby Lake Dev., Ltd., 321
S.W.3d at 4 (“If the evidence creates a fact question regarding the jurisdictional issue, then
the plea to the jurisdiction must be denied.”). We need not reach Appellants’ argument
that the only allegation by Starks that qualifies as an “adverse employment action” and
could therefore potentially support Starks’s discrimination claim is the denial of the
Faculty Ombuds Officer position. We overrule Appellants’ first issue.
Hussey’s and Vaught’s Plea to the Jurisdiction
In Appellants’ second issue, Hussey and Vaught contend that the trial court erred
in denying their plea to the jurisdiction because Starks’s free-speech retaliation claim
against them in their official capacities is barred by sovereign immunity.
Generally, sovereign immunity deprives a trial court of jurisdiction over a lawsuit
in which a party has sued the State or a state agency, unless the Legislature has consented
to suit. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). A suit
against a government employee in his official capacity is a suit against his government
employer; therefore, an employee sued in his official capacity has the same governmental
immunity, derivatively, as his government employer. Franka v. Velasquez, 332 S.W.3d 367,
Tex. A&M Univ. v. Starks Page 9
382-83 (Tex. 2011). But there is an exception: an action alleging that the government
employee acted ultra vires. Id. An ultra vires action is one in which the plaintiff seeks
relief against a government employee in his official capacity who allegedly has violated
statutory or constitutional provisions by acting without legal authority or by failing to
perform a purely ministerial act. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73
(Tex. 2009). Ultra vires suits do not attempt to exert control over the State—they attempt
to reassert the control of the State. Id. at 372.
When a plaintiff alleges that a government employee in his official capacity acted
ultra vires, we must examine whether the plaintiff’s petition sufficiently pleaded his
claims to defeat the government’s plea to the jurisdiction. See Miranda, 133 S.W.3d at 226.
While a plea to the jurisdiction “does not authorize an inquiry so far into the substance
of the claims presented that plaintiffs are required to put on their case simply to establish
jurisdiction,” the plaintiffs must do more than merely name a cause of action against the
state official and assert the existence of a constitutional violation. Id. at 223; see Andrade
v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011) (considering merits of equal-protection
claim against Secretary of State in reviewing ruling on plea to jurisdiction and explaining
that Secretary retained immunity from suit unless plaintiffs pleaded “viable claim”); City
of Paris v. Abbott, 360 S.W.3d 567, 583 (Tex. App.—Texarkana 2011, pet. denied) (noting
that governmental defendant remains immune from suit absent plaintiff’s pleading of
viable claim). To state a claim within the waiver of sovereign immunity, the plaintiff
must plead a facially valid constitutional claim. See City of Houston v. Johnson, 353 S.W.3d
499, 504 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).
Tex. A&M Univ. v. Starks Page 10
We begin with Starks’s allegations against Hussey. In his first amended petition,
Starks states that he is bringing a state constitutional free-speech retaliation claim against
Hussey for which he is seeking equitable relief. Starks alleges, “In retaliation for speaking
out, Dr. Starks was denied a promotion, excluded from departmental leadership, and
given undeserved negative reviews. Dr. Starks has also been kept out of leadership roles
at the university.” Hussey argues that these pleadings “fell well short of what is required
to proceed.” Hussey claims that Starks has failed to plead an ultra vires claim against him
and that, even if Starks has pleaded an ultra vires claim against him, Starks has failed to
plead a viable free-speech retaliation claim against him.
The proper defendants in an ultra vires action are those officials whose acts or
omissions allegedly violated the plaintiff’s rights. Montrose Mgmt. Dist. v. 1620
Hawthorne, Ltd., 435 S.W.3d 393, 413 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)
(citing Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011)). Here, even though
Starks states that he is bringing a state constitutional free-speech retaliation claim against
Hussey, he does not allege in his pleading that Hussey was involved at all in any of the
alleged unconstitutional retaliatory conduct against him. In other words, Starks alleges
that in retaliation for speaking out, he was denied a promotion, excluded from
departmental and university leadership, and given undeserved negative reviews, but
Starks does not allege that Hussey had any involvement in the denial of a promotion to
him, his exclusion from departmental or university leadership, or his being given
undeserved negative reviews. Starks has therefore failed to plead an ultra vires claim
against Hussey. See id.; see also Heinrich, 284 S.W.3d at 372 (stating that to fall within ultra
Tex. A&M Univ. v. Starks Page 11
vires exception, suit must allege, and ultimately prove, official acted without legal
authority or failed to perform purely ministerial act).
Starks acknowledges as much in his brief, and, citing City of Dallas v. England, 846
S.W.2d 957, 960 (Tex. App.—Austin 1993, writ dism’d w.o.j.), states that Hussey is a party
because he is one of the officials in authority at TAMU with the power to act on the
injunctive relief that Starks requests from the trial court. England, however, does not
support Hussey’s being a proper party even though Starks does not assert that he was
involved in any of the alleged unconstitutional retaliatory conduct. Instead, England
merely supports the general rule that “actions of a state official that are unconstitutional,
illegal, wrongful, or beyond statutory authority are not immunized by governmental
immunity” and that the proper remedy is for the party to sue the official who committed
the actions that are unconstitutional, illegal, wrongful, or beyond statutory authority, not
the governmental unit itself. See id. Accordingly, the trial court erred in denying
Hussey’s plea to the jurisdiction because Starks’s free-speech retaliation claim against
him in his official capacity is barred by sovereign immunity.
We now turn to Starks’s allegations against Vaught. Starks makes the same
allegations against Vaught as he did against Hussey. Likewise, as with Hussey, Vaught
argues that Starks has failed to plead an ultra vires claim against him and that, even if
Starks has pleaded an ultra vires claim against him, Starks has failed to plead a viable free-
speech retaliation claim against him.
As stated above, the proper defendants in an ultra vires action are those officials
whose acts or omissions allegedly violated the plaintiff’s rights. Montrose Mgmt. Dist.,
Tex. A&M Univ. v. Starks Page 12
435 S.W.3d at 413. In this case, Starks alleges that his state constitutional free-speech
rights were violated when, in retaliation for speaking out, he was denied a promotion,
excluded from departmental and university leadership, and given undeserved negative
reviews. For Starks’s allegations to implicate Vaught in the violation of his free-speech
rights, Starks must have alleged that Vaught was involved in the denial of a promotion
to Starks, his exclusion from departmental and university leadership, and his being given
undeserved negative reviews.
Starks does not allege that Vaught had any involvement in the denial of a
promotion to him. Starks does not allege that Vaught was involved at all in anything
regarding the Faculty Ombuds Officer position. Therefore, Starks has not pleaded an
ultra vires claim against Vaught by alleging that Starks’s state constitutional free-speech
guarantees were violated when he was denied a promotion in retaliation for speaking out
regarding a matter of public concern. See id.; see also Heinrich, 284 S.W.3d at 372. Starks
does allege, however, that Vaught was involved in refusing to appoint him to any
departmental committees or programs. Starks has therefore pleaded an ultra vires action
against Vaught by alleging that Starks’s state constitutional free-speech guarantees were
violated when he was excluded from departmental and university leadership in
retaliation for speaking out regarding a matter of public concern. See Montrose Mgmt.
Dist., 435 S.W.3d at 413; see also Heinrich, 284 S.W.3d at 372. Similarly, although Starks
does not allege that Vaught affirmatively acted in giving Starks undeserved negative
reviews, Starks does allege that Vaught was involved by refusing to retract inaccurate
portions of his annual performance review. Therefore, we assume that Starks has
Tex. A&M Univ. v. Starks Page 13
pleaded an ultra vires action against Vaught by alleging that Starks’s state constitutional
free-speech guarantees were violated when he was given undeserved negative reviews
in retaliation for speaking out regarding a matter of public concern. See Montrose Mgmt.
Dist., 435 S.W.3d at 413; see also Heinrich, 284 S.W.3d at 372.
Having concluded that Starks has pleaded an ultra vires claim against Vaught, we
next turn to Vaught’s contention that Starks has failed to plead a viable free-speech
retaliation claim against him in his official capacity. The parties agree that to establish a
free-speech retaliation claim against a government defendant, a plaintiff must prove the
following elements: (1) the plaintiff suffered an adverse employment action, (2) the
plaintiff’s speech involved a matter of public concern, (3) the plaintiff’s interest in
speaking outweighed the governmental defendant’s interest in promoting efficiency, and
(4) the protected speech motivated the defendant’s conduct. 2 See Juarez v. Aguilar, 666
F.3d 325, 332 (5th Cir. 2011); Nairn v. Killeen Indep. Sch. Dist., 366 S.W.3d 229, 244 (Tex.
App.—El Paso 2012, no pet.). Vaught challenges the first and fourth elements.
Vaught first argues that Starks has failed to allege any adverse employment action
sufficient to support a free-speech retaliation claim. Vaught contends that the Fifth
Circuit has limited “adverse employment actions” to “discharges, demotions, refusals to
hire, refusals to promote, and reprimands” and that none of the alleged adverse
2 Starks claims that Vaught violated his right to free speech under the Texas Constitution; however, neither
party has argued that the elements of a free-speech retaliation claim under the Texas Constitution differ
from the elements of a federal First Amendment retaliation claim. We will therefore use federal
constitutional precedent in analyzing Starks’s claim. See Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002)
(“Where, as here, the parties have not argued that differences in state and federal constitutional guarantees
are material to the case, and none is apparent, we limit our analysis to the First Amendment and simply
assume that its concerns are congruent with those of article I, section 8.).
Tex. A&M Univ. v. Starks Page 14
employment actions cited by Starks rise to that level. See Pierce v. Tex. Dep’t of Criminal
Justice, Institutional Div., 37 F.3d 1146, 1149 (5th Cir. 1994) (“Adverse employment actions
are discharges, demotions, refusals to hire, refusals to promote, and reprimands.”).
Starks responds that the U.S. Supreme Court has instead defined an “adverse
employment action” as one that a reasonable employee would find to be “materially
adverse,” i.e., “the employer’s actions must be harmful to the point that they could well
dissuade a reasonable worker from making or supporting a charge of discrimination”
under federal law. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S. Ct.
2405, 2409, 165 L. Ed. 2d 345 (2006) (“[T]he [antiretaliation] provision [of Title VII of the
Civil Rights Act of 1964] covers those (and only those) employer actions that would have
been materially adverse to a reasonable employee or job applicant. In the present context
that means that the employer’s actions must be harmful to the point that they could well
dissuade a reasonable worker from making or supporting a charge of discrimination.”).
Starks argues that, under this standard, he has pleaded an adverse employment action or
that there is at least a fact issue concerning whether a “reasonable employee” would find
the actions of which he complains “materially adverse.” We disagree.
Burlington did not address the standard for adverse employment actions in First
Amendment retaliation cases; instead, it involved Title VII’s antiretaliation provision. See
id. at 56-57, 126 S.Ct. at 2408-09. The Fifth Circuit has not yet determined whether the
Burlington standard for adverse employment actions applies to First Amendment
retaliation cases. See Gibson v. Kilpatrick, 734 F.3d 395, 400 n.4 (5th Cir. 2013), vacated on
other grounds, 134 S. Ct. 2874 (2014). Likewise, the Texas Supreme Court has not addressed
Tex. A&M Univ. v. Starks Page 15
the issue. Cf. Montgomery County v. Park, 246 S.W.3d 610, 614 (Tex. 2007) (adopting
Burlington standard with appropriate modifications to define what qualifies as “adverse”
personnel action within meaning of Texas Whistleblower Act). We therefore apply the
Fifth Circuit’s precedent that, for purposes of First Amendment retaliation claims,
“adverse employment actions” are discharges, demotions, refusals to hire, refusals to
promote, and reprimands.3 See Juarez, 666 F.3d at 332 (citing Sharp v. City of Houston, 164
F.3d 923, 933 (5th Cir. 1999)); Pierce, 37 F.3d at 1149.
The adverse employment actions that Starks alleges in his free-speech retaliation
claim are the denial of a promotion, his exclusion from departmental and university
leadership, and his being given undeserved negative reviews.4 We need not determine
whether the alleged denial of a promotion to Starks constitutes an adverse employment
action; we have already concluded that because Starks has not alleged that Vaught was
involved in the denial of a promotion, Starks has not pleaded an ultra vires claim against
Vaught regarding the denial of a promotion. Additionally, because Starks has not alleged
3Some district courts in the Fifth Circuit have formally applied the Burlington standard to First Amendment
retaliation claims. See, e.g., Peyton v. City of Yazoo City, 764 F. Supp. 2d 831, 838 (S.D. Miss. 2011); Laredo
Fraternal Order of Police v. City of Laredo, No. L-04-134, 2008 WL 678698, at *2 (S.D. Tex. Mar. 12, 2008). But
others have not. See, e.g., Jackson v. Tex. S. Univ., 997 F. Supp. 2d 613, 629, 638, 649-50 (S.D. Tex. 2014). Starks
points out that one of our sister courts, in the context of a First Amendment retaliation claim, did generally
define an “adverse employment action” using the Burlington standard. See Nairn, 366 S.W.3d at 244. There
was no dispute in Nairn, however, about whether the conduct by the plaintiff’s employer against her was
an adverse employment action; therefore, the Nairn court did not address the issue. See id. at 244-45.
4 In addition to these alleged retaliatory adverse employment actions, Starks alleges that Vaught was
involved in issuing a written reprimand to him and then in preparing another written document that
Vaught circulated to administrators and faculty and that reiterated the allegations in the reprimand,
threatened Starks’s future teaching of certain courses, and stated that Starks’s conduct would be considered
in future performance reviews. Starks does not allege, however, that Vaught’s conduct regarding the
reprimand and subsequent document occurred in retaliation for speaking out regarding a matter of public
concern. Instead, Starks refers to this alleged conduct as “discriminatory.”
Tex. A&M Univ. v. Starks Page 16
that Vaught was involved in the denial of a promotion, Starks has not alleged facts to
support the fourth element of a free-speech retaliation claim against Vaught regarding
the denial of a promotion. See Juarez, 666 F.3d at 332. The fourth element would require
Starks to prove that his speaking out on a matter of public concern motivated Vaught’s
conduct regarding the denial of a promotion. See id. But because Starks does not allege
that Vaught was involved with the denial of a promotion, there is no alleged conduct by
Vaught that could have been motivated by Starks’s speaking out on a matter of public
concern.
We therefore turn to Starks’s alleged exclusion from departmental and university
leadership and his allegedly being given undeserved negative reviews. Regarding his
exclusion from departmental and university leadership, Starks alleges that Vaught has
refused to appoint him to any departmental committees or programs despite his
willingness to serve and despite other non-African-American faculty members being
appointed to serve on multiple committees in an academic year. Starks further alleges
that departmental program and committee work is an important part of his annual merit
review consideration and that not being allowed to serve in such a role negatively
impacts his ability to earn merit increases and to be considered for advancement to top-
tier administrative positions. Regarding his being given undeserved negative reviews,
Starks states in his briefing that he is not complaining that the performance evaluation
itself was an adverse employment action. Instead, Starks argues that the adverse
employment action committed by Vaught was that he refused to correct alleged
inaccuracies in the performance evaluation.
Tex. A&M Univ. v. Starks Page 17
The Fifth Circuit has held in the education context that “’decisions concerning
teaching assignments, pay increases, administrative matters, and departmental
procedures,’ while extremely important to the person who dedicated his or her life to
teaching, do not rise to the level of a constitutional deprivation.” Harrington v. Harris, 118
F.3d 359, 365 (5th Cir. 1997) (quoting Dorsett v. Bd. of Trs. for State Colls. & Univs., 940 F.2d
121, 123 (5th Cir. 1991)). The court in Dorsett stated:
We have neither the competency nor the resources to undertake to
micromanage the administration of thousands of state educational
institutions. Of all fields the federal courts “’should hesitate to invade and
take over, education and faculty appointments at [the university] level are
probably the least suited for federal court supervision.’”
Dorsett, 940 F.2d at 124 (citations omitted). We thus conclude that Vaught’s alleged
conduct in Starks’s being excluded from departmental and university leadership and his
being given undeserved negative reviews does not qualify as an adverse employment
action. Vaught’s alleged actions do not constitute discharges, demotions, refusals to hire,
refusals to promote, or reprimands. Starks has not, therefore, pleaded a viable free-
speech retaliation claim against Vaught in his official capacity. See Juarez, 666 F.3d at 332.
Because Starks has not pleaded an ultra vires claim against Vaught in his official
capacity regarding the denial of a promotion to Starks and has failed to otherwise plead
a viable free-speech retaliation claim against Vaught in his official capacity, the trial court
erred in denying Vaught’s plea to the jurisdiction because Starks’s free-speech retaliation
claim against him in his official capacity is barred by sovereign immunity. We sustain
Appellants’ second issue.
Tex. A&M Univ. v. Starks Page 18
Starks argues that he should nevertheless be afforded the opportunity to re-plead.
If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial
court’s jurisdiction, but do not affirmatively demonstrate incurable defects in the
jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded
the opportunity to amend. Miranda, 133 S.W.3d at 226. Hussey and Vaught argue that
Starks’s pleadings regarding his constitutional free-speech retaliation claim have an
incurable defect because Starks suffered no qualifying adverse employment action.
Liberally construing the live pleadings in Starks’s favor, however, we believe that while
the pleadings do not contain facts sufficient to affirmatively demonstrate the trial court’s
jurisdiction over Starks’s claims against Hussey and Vaught in their official capacities,
neither do they affirmatively demonstrate incurable defects in jurisdiction. The trial court
ruled in Starks’s favor, so Starks had no occasion in the trial court to ask for an
opportunity to amend his pleadings to cure any defect. The proper course of action is to
reverse the trial court’s order as to Starks’s claims against Hussey and Vaught in their
official capacities and remand with instructions for the trial court to give Starks a
reasonable opportunity to amend his pleadings in an attempt to properly plead these
claims. See Lazarides v. Farris, 367 S.W.3d 788, 804 (Tex. App.—Houston [14th Dist.] 2012,
no pet.).
Tex. A&M Univ. v. Starks Page 19
Vaught’s Motion for Summary Judgment
In Appellants’ third issue, Vaught contends that the trial court erred in denying
his motion for summary judgment based on official immunity.
The standard of review in traditional summary judgment cases is well settled. The
issue on appeal is whether the movant met its summary judgment burden of establishing
that no genuine issue of material fact exists and that it is entitled to judgment as a matter
of law. TEX. R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
A defendant may meet this burden by conclusively negating an essential element of the
plaintiff’s case or conclusively establishing all of the necessary elements of an affirmative
defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).
We take as true all evidence favorable to the nonmovant. Rhone-Poulenc, Inc. v.
Steel, 997 S.W.2d 217, 223 (Tex. 1999); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910,
911 (Tex. 1997). We indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. Rhone-Poulenc, Inc., 997 S.W.2d at 223; Science Spectrum, Inc., 941
S.W.2d at 911. When the trial court does not specify the grounds upon which it ruled, the
summary judgment may be affirmed if any of the grounds stated in the motion is
meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
Vaught first argues within this issue that, regardless of the capacity in which he
was sued, Starks was required to plead a facially viable claim of a constitutional violation
and that Starks has failed to plead such a violation because he has failed to allege that he
suffered an adverse employment action that was substantially motivated by his protected
Tex. A&M Univ. v. Starks Page 20
speech. Vaught argues more specifically that Starks’s performance evaluation is not an
adverse employment action under free-speech retaliation law.
Government employees sued in their individual capacities may not rely on the
defense of sovereign immunity. Cloud v. McKinney, 228 S.W.3d 326, 333 (Tex. App.—
Austin 2007, no pet.). Instead, they may move for summary judgment and establish their
entitlement to judgment as a matter of law by conclusively negating an essential element
of the plaintiff’s case or conclusively establishing all of the necessary elements of an
affirmative defense, including official immunity. See Cathey, 900 S.W.2d at 341; Cloud, 228
S.W.3d at 333-34. But a summary judgment may not be granted on grounds that are not
raised in the motion for summary judgment. McConnell v. Southside Indep. Sch. Dist., 858
S.W.2d 337, 341 (Tex. 1993).
Here, Vaught, in his individual capacity, did not move for summary judgment on
the ground that he could conclusively negate an essential element of Starks’s free-speech
retaliation claim, i.e., that he could conclusively establish that Starks suffered no adverse
employment action. Thus, the trial court could not have properly granted Vaught’s
motion for summary judgment on this ground, and we cannot therefore hold that the trial
court erred in denying Vaught’s motion for summary judgment on this ground.
Vaught next argues that the trial court erred in denying his motion for summary
judgment because he conclusively established that he was entitled to official immunity.
Official immunity is an affirmative defense that protects government employees from
personal liability. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). A
governmental employee is entitled to official immunity: (1) for the performance of
Tex. A&M Univ. v. Starks Page 21
discretionary duties; (2) within the scope of the employee’s authority; (3) provided the
employee acts in good faith. Id. Because official immunity is an affirmative defense, to
obtain summary judgment on official immunity, the governmental employee must
conclusively prove each element of the defense. Id.
We begin with whether Vaught conclusively proved that he was engaged in the
performance of discretionary duties. Whether an act is discretionary or ministerial
depends on whether it involves personal deliberation or simple adherence to an order.
Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 425 (Tex. 2004). “Ministerial acts are
those for which ‘the law prescribes and defines the duty to be performed with such
precision and certainty as to leave nothing to the exercise of discretion or judgment.’” Id.
(quoting Comm’r of the Gen. Land Office v. Smith, 5 Tex. 471, 479 (1849)). If the public
official has no choice but to obey an order, the act is ministerial. Id. (citing City of Lancaster
v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)). If an action involves personal deliberation,
decision, and judgment, however, it is discretionary. Id.
In his free-speech retaliation claim against Vaught, Starks alleges that he was given
undeserved negative reviews in retaliation for speaking out regarding a matter of public
concern. Starks alleges that Vaught was involved in Starks’s being given undeserved
negative reviews because Vaught refused to retract inaccurate portions of Starks’s annual
performance review.
Vaught argues that the evidence conclusively establishes that he was undertaking
discretionary duties in reconsidering Starks’s performance evaluation. To support his
argument, Vaught points in part to his own affidavit in which he states that in 2012, the
Tex. A&M Univ. v. Starks Page 22
Department of History approved the “Procedures and Criteria for Annual Merit
Performance Evaluation and Review.” In the attached “true and correct copy” of the
document, the detailed “Procedures” for conducting the annual performance evaluation
include in pertinent part:
Approximately six weeks after the beginning of the succeeding calendar
year, the department’s executive committee will evaluate the faculty with
the objective of locating each member in the appropriate category of
performance using a five-point scale: 4 = Superior; 3 = Excellent; 2 =
Commendable; 1 = Satisfactory; 0 = Unsatisfactory. Typically, areas of
responsibility will be weighted as follows: Research 60%, Teaching 20%,
Service 20%. . . .
Upon the completion of the evaluations, the department head will notify
each member of the faculty in writing of the executive committee’s
assessment of his/her performance, including individual scores and
rankings in research, teaching, and service and overall ranking and
weighted composite score. This memorandum constitutes the faculty
member’s annual review. The department head will also include an
assessment of each faculty member’s progress in research, teaching, and
service, which will vary from rank to rank. . . .
Faculty members, upon indicating receipt by signing a copy of the
document, will be given the opportunity to question their rankings in
writing to the department head, who will consult the executive committee
when reconsidering the evaluation. In such a case, the department head will
issue to the faculty member a final written notification explaining the
decision. Additional meetings between the department head and the
faculty member may be held at either’s request to discuss expectations
and/or professional progress. . . . [Emphasis added.]
The detailed “Criteria” that the department’s executive committee was to use in
determining the appropriate category of performance for each faculty member includes
assessing such things as whether the faculty member had “a significant and productive
research agenda” or a “highly productive research agenda,” whether the faculty member
had “demonstrated competence in the classroom” or “extraordinary teaching,” etc. It
Tex. A&M Univ. v. Starks Page 23
could be reasonably inferred that the department head, in reconsidering the evaluation,
also had to make such assessments and therefore performed actions involving personal
deliberation, decision, and judgment. In fact, Vaught states in his affidavit that as the
Head of the Department of History in the College of Liberal Arts at TAMU, a faculty
member may appeal his evaluation scores to him. Vaught further states that Starks filed
an appeal of his evaluation and that, “In ranking Dr. Starks’s teaching efforts, I reviewed
his self-evaluation and personally deliberated on the appropriate ranking. Issuing a
ranking of Dr. Starks’ teaching was not a ministerial duty, but involved discretion on my
part to determine the most appropriate ranking.”
Starks responds that performing a complete review of the performance evaluation
was a ministerial duty because the review process does not leave room for the department
head to pick and choose which portions of the evaluation he will reconsider. But Starks
does not allege in his free-speech retaliation claim against Vaught that Vaught failed to
perform a complete review of Starks’s performance evaluation in retaliation for speaking
out. Instead, as stated above, Starks alleges that, in retaliation for speaking out, he was
given undeserved negative reviews, which happened at least in part because Vaught
refused to retract inaccurate portions of Starks’s annual performance review. Therefore,
it is this conduct, the conduct that is alleged in Starks’s free-speech retaliation claim, for
which Vaught seeks to establish official immunity and for which he must therefore
establish constitutes discretionary duties. In light of Vaught’s evidence, we conclude that
Vaught conclusively established that he was undertaking discretionary duties in
reconsidering Starks’s performance evaluation. See id.
Tex. A&M Univ. v. Starks Page 24
We next turn to whether Vaught conclusively established that he was acting
within the scope of his authority. Vaught states that Starks does not dispute that Vaught
was acting within the scope of his authority regarding actions Vaught took concerning
Starks’s evaluation. But a nonmovant has no burden to respond to a summary judgment
motion unless the movant conclusively establishes its cause of action or defense. Rhone-
Poulenc, Inc., 997 S.W.2d at 222-23. “The trial court may not grant summary judgment by
default because the nonmovant did not respond to the summary judgment motion when
the movant’s summary judgment proof is legally insufficient.” Id. at 223. A movant must
establish its right to summary judgment on the issues expressly presented to the trial
court by conclusively proving all elements of the movant’s cause of action or defense as
a matter of law. Id. Accordingly, the burden was on Vaught to conclusively prove that
he was acting within the scope of his authority.
A public official acts within the scope of his authority if he is discharging duties
that are generally assigned to him. Ballantyne, 144 S.W.3d at 424. In the “Procedures and
Criteria for Annual Merit Performance Evaluation and Review” discussed above, the
department head is assigned to reconsider the evaluation. Vaught, as the head of the
department, was therefore acting within the scope of his authority when he reconsidered
Starks’s performance evaluation. We conclude that Vaught conclusively established that
he was acting within the scope of his authority in reconsidering Starks’s performance
evaluation.
Finally, we address whether Vaught conclusively established that he was acting in
good faith in reconsidering Starks’s performance evaluation. To establish the element of
Tex. A&M Univ. v. Starks Page 25
good faith, a public official must conclusively prove that “a reasonably prudent official,
under the same or similar circumstances, could have believed that his conduct was
justified based on the information he possessed when the conduct occurred.” Id. at 426.
The test for good faith turns not on “’what a reasonable person would have done,’” but
rather on “’what a reasonable [person] could have believed.’” Id. (quoting Telthorster v.
Tennell, 92 S.W.3d 457, 465 (Tex. 2002)). The official “must prove only that a reasonably
prudent [official], under similar circumstances, might have [acted the same way].”
Telthorster, 92 S.W.3d at 465. If the official meets this burden, the nonmovant “must show
that ‘no reasonable person in the defendant’s position could have thought the facts were
such that they justified defendant’s acts.’” Chambers, 883 S.W.2d at 657.
As stated above, the “Procedures and Criteria for Annual Merit Performance
Evaluation and Review” for the Department of History provide:
Upon the completion of the evaluations, the department head will notify
each member of the faculty in writing of the executive committee’s
assessment of his/her performance, including individual scores and
rankings in research, teaching, and service and overall ranking and
weighted composite score. This memorandum constitutes the faculty
member’s annual review.
Accordingly, Vaught states in his affidavit that after the Executive Committee conducted
their review, he would notify each faculty member in writing of the Committee’s
assessment of performance.
Vaught states that, in an April 12, 2014 memo, he notified Starks of the
Committee’s assessment of his performance for 2013. In the memo, Vaught notified
Starks that the Executive Committee evaluated his 2013 performance as follows:
Tex. A&M Univ. v. Starks Page 26
Research: Unsatisfactory (vote: 5-0 + 1 abstention)
Teaching: 6 abstentions
Service: Unsatisfactory (vote: 5-0 + 1 abstention)
Overall evaluation: Unsatisfactory
Vaught then gave Starks a lengthy explanation for his evaluation based on the
“Procedures and Criteria for Annual Merit Performance Evaluation and Review” for the
Department of History:
As stated in the department’s revised “Procedures and Criteria for Annual
Merit Performance Evaluation and Review” (2012), to earn a satisfactory
ranking in research, a faculty member needs to provide tangible evidence
of a significant and productive research agenda—one demonstrating
progress, trajectory, and sustainability—over a three year period (pp. 3-4).
Evidence of such an agenda consists of single-authored research
monographs, edited volumes of scholarly essays, peer-reviewed articles in
disciplinary or area-specific journals, essays published in edited volumes,
significant translations, external grants and fellowships, and article or book
awards (pp. 3-4). The Executive Committee found that your research
productivity over the three year period 2011-2013 does not meet the criteria
for a satisfactory ranking. On your 2013 Annual Report Form,5 you cited
only a reprinted scholarly essay first published in 2003. Note, however, that
our annual review guidelines deem reprinted articles “unlikely to be
considered for merit” or evidence of a significant and productive research
agenda. Under “status of long-term research projects,” you mention three
manuscripts in various stages of development, but the Executive
Committee, in accordance with the guidelines, did not consider works in
progress as criteria for making satisfactory progress. The Executive
Committee also notes that with regard to research, the pertinent sections on
your previous two annual review forms (2011 and 2012) are entirely blank.
5 The “Procedures and Criteria for Annual Merit Performance Evaluation and Review” provide:
On or about December 1, the department head will distribute blank “Faculty Member’s
Annual Report” forms … along with copies of this document. Each member of the faculty
will be required to submit the completed report by January 20 of the succeeding year. The
“Faculty Member’s Annual Report” will detail the academic activities of a calendar year
(January 1 through December 31) and will serve as the primary basis for evaluating a
faculty member’s professional progress. It is incumbent upon each faculty member to
make the best case for his/her accomplishments on the form and to state, with clarity and
purpose, his/her short and long term goals for professional development (teaching,
research, and service) in the section at the end of the form.
Tex. A&M Univ. v. Starks Page 27
No publications, grants, or awards in the previous three years yields no
tangible evidence of productivity—hence, the unsatisfactory ranking in
research.
Because of your lack of any professional service over the three-year period,
the Executive Committee, following the guidelines, also ranked you
unsatisfactory in service. All six members abstained from evaluating your
teaching due to your remarks under “courses taught” on the Annual Report
Form. Note, however, that an overall unsatisfactory evaluation “results
from a faculty member’s failure to meet departmental standards in one or
more of the three areas of responsibility” (p. 3).
Vaught states in his affidavit that he “approved the Executive Committee’s rankings and
assessment.”
The “Procedures and Criteria for Annual Merit Performance Evaluation and
Review” for the Department of History provide, “Faculty members, upon indicating
receipt by signing a copy of the document, will be given the opportunity to question their
rankings in writing to the department head, who will consult the executive committee
when reconsidering the evaluation.” Vaught states in his affidavit that Starks filed an
appeal of the evaluation. Vaught then explains:
Because the six members of the Executive Committee abstained from giving
Dr. Starks a score for teaching, I reviewed and evaluated the teaching
contributions listed by Dr. Starks in his Annual Report. There are five
categories of scores that can be given in the area of teaching: superior,
excellent, commendable, satisfactory and unsatisfactory. . . . As stated in
the Department criteria, “A satisfactory ranking reflects a faculty member
having met departmental standards in all three areas of responsibility.”
Based on my review of Dr. Starks’ Annual Report, I believed this ranking
accurately reflected his teaching efforts for the 2013 calendar year. The
Executive Committee reviewed this ranking and concurred.
....
. . . Teaching efforts that demonstrate a “superior” ranking would
include receipt of a University-level teaching award. . . . An “excellent”
Tex. A&M Univ. v. Starks Page 28
ranking is awarded to those faculty members who contribute “substantially
to the graduate program, as evidenced by chairing two or more committees
and serving on more than four others; or contributing substantially to the
undergraduate program with the award of three or more “commendable”
teaching accomplishments. . . . To demonstrate efforts deserving of a
“commendable” ranking, a faculty member must demonstrate “extra
engagement in the classroom . . . beyond meeting basic expectations.” . . .
. . . The information produced by Dr. Starks in his Annual Report
showed that he taught: three courses in the Spring 2013 semester, one
course in the Summer 2013 semester and two courses in the Fall 2013
semester. . . . Dr. Starks did not teach any independent study. He listed
“none” under “Contributions to Undergraduate Education.” He stated that
he was a committee member for one Ph.D candidate. Therefore, his efforts,
as reflected in the Report that he prepared and submitted for review, did
not . . . reflect the level needed for a ranking of “superior,” “excellent” or
“commendable” effort.
Starks asserts that the foregoing evidence does not establish that Vaught was
acting in good faith because Vaught swore that he reviewed only Starks’s evaluation in
teaching. Starks argues that because he questioned the entirety of his evaluation, the
“Procedures and Criteria for Annual Merit Performance Evaluation and Review” for the
Department of History required Vaught to reconsider the entirety of his evaluation.
Starks thus contends that because Vaught failed to follow the procedures and instead
reviewed only a portion of Starks’s evaluation, a fact issue exists as to whether Vaught
acted in good faith. We disagree.
Vaught does not state in his affidavit that he reconsidered only Starks’s evaluation
in teaching. Rather, Vaught states, “I approved the Executive Committee’s rankings and
assessment.” When Starks appealed, however, Vaught reviewed Starks’s evaluation in
teaching because the six members of the Executive Committee abstained from giving
Starks a score for teaching. Furthermore, Starks’s own evidence shows that Vaught did
Tex. A&M Univ. v. Starks Page 29
not reconsider only Starks’s evaluation in teaching. Attached to Starks’s response to
Appellants’ motion for summary judgment and plea to the jurisdiction is a memo from
Vaught to Starks detailing Vaught’s “Reconsideration of [Starks’s] 2013 Annual Review.”
Along with explaining why Starks earned a ranking of satisfactory in teaching, Vaught
explained why he denied Starks’s appeal of his unsatisfactory ranking in service and
research. The explanations are based on the “Procedures and Criteria for Annual Merit
Performance Evaluation and Review” for the Department of History.
Based on the foregoing, we conclude that Vaught met his burden of conclusively
proving that a reasonably prudent official, under the same or similar circumstances,
could have believed that Vaught’s conduct was justified based on the information he
possessed when the conduct occurred. Vaught therefore conclusively established that he
was acting in good faith in reconsidering Starks’s performance evaluation. See Ballantyne,
144 S.W.3d at 426. Moreover, because we have concluded that Vaught met his burden of
conclusively establishing all of the necessary elements of his affirmative defense of
official immunity, we hold that the trial court erred in denying Vaught’s motion for
summary judgment on official immunity. We sustain Appellants’ third issue.
Conclusion
We reverse that portion of the trial court’s order denying Vaught’s motion for
summary judgment and render summary judgment in favor of Vaught in his individual
capacity. We reverse that portion of the trial court’s order denying Hussey’s and
Vaught’s plea to the jurisdiction and remand that portion of the case to the trial court
with instructions for the trial court to give Starks a reasonable opportunity to amend his
Tex. A&M Univ. v. Starks Page 30
pleadings in an attempt to properly plead those claims. We affirm the remaining portion
of the trial court’s order.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed in part/Reversed in part
Opinion delivered and filed July 27, 2016
[CV06]
Tex. A&M Univ. v. Starks Page 31