Wilkerson v. University of North Texas Ex Rel. Board of Regents

Case: 16-41716 Document: 00514279586 Page: 1 Date Filed: 12/20/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-41716 United States Court of Appeals
Fifth Circuit
FILED
DALE A. WILKERSON, December 20, 2017
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
UNIVERSITY OF NORTH TEXAS, By and Through Its Board of Regents;
NEAL SMATRESK, President; FINLEY GRAVES, Interim Provost and Vice
President for Academic Affairs; WARREN BURGGREN, Former Provost and
Vice President for Academic Affairs; ARTHUR GOVEN, Former Dean, College
of Arts and Sciences; PATRICIA GLAZEBROOK, Former Chair, Department
of Philosophy and Religion Studies,
Defendants - Appellants
Appeal from the United States District Court
for the Eastern District of Texas
Before SMITH, BARKSDALE, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
A Texas university declined to renew a lecturer’s contract. After several
extensive but unsuccessful administrative appeals, that lecturer sued the
school and its administrators, alleging a deprivation of his property interest in
his job without due process and tortious interference with his employment con-
tract. The district court denied summary judgment to the administrators on
their immunity defenses. We reverse.
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I.
The University of North Texas is a state institution with a formal tenure
track. Plaintiff-appellee Dale Wilkerson was never on that track. He was in-
stead an untenured lecturer in the University’s Department of Philosophy and
Religion Studies from 2003 to 2014. For the first eight years, he and the Uni-
versity entered separate, one-year teaching contracts. In 2011, Wilkerson be-
came the Philosophy Department’s “Principal Lecturer.”
Wilkerson’s “Principal Lecturer” contract provided a “temporary, non-
tenurable, one-year appointment with a five-year commitment to renew at the
option of the University.” As he was signing that contract, Wilkerson avers,
the department chair (defendant-appellant Patricia Glazebrook) explained
that the optional-renewal provision was “a convenience” in place only “in the
event a reduction in workforce were necessary” or “in the event of a major pol-
icy violation.” But the written agreement included this integration clause: “No
previous written or oral commitment will be binding on the University except
as specified in this letter” and its attachments.
With his post came a “nine-month base salary.” And as the contract ex-
plained, “selected [U]niversity policies, procedures and expectations” governed
Wilkerson’s appointment. Among those policies were the departmental bylaws,
which advised Wilkerson that Principal Lecturer contracts “are renewed an-
nually.” Along those same lines, the bylaws added that “[l]ecturers may hold
full- or part-time appointments of one or multiple years that are renewed pend-
ing the departmental annual review process and resource availability,” and
that even “[m]ulti-year lecturers are in a temporary, non-tenurable one-year
contract with a three to five year commitment to renew at the option of [the
University].” The University’s constitution echoed that point: “Renewal of term
appointments . . . is entirely at the option of the [U]niversity.” This “commit-
ment to renew” at the school’s “option” meant the University could reappoint
2
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Wilkerson without a formal search process requiring him to compete with other
candidates. Even so, the bylaws maintained, “[r]eappointment . . . offer letters
w[ould] be initiated on an annual basis” and “there shall be no expectation of
continued employment beyond the end of the current appointment period.”
Twice the University renewed Wilkerson’s contract. It was during his
first renewed term—in March 2013—that Wilkerson attended a student-re-
cruitment party hosted by the department’s then-Director of Graduate Studies.
There, Wilkerson met C.B., a 26-year-old, incoming graduate student. 1 The two
had a brief relationship. Several times in June 2013 they met at Wilkerson’s
house. Twice they kissed. A few weeks later, C.B. joined Wilkerson and another
female grad student on an overnight trip from Dallas to Memphis. As the com-
plaint tells it, the three shared a hotel room and a platonic evening.
By September 2013, Wilkerson had become his department’s Director of
Graduate Studies 2 and C.B. had matriculated. A few months passed before
C.B. filed a formal complaint with the University, contending that Wilkerson
sexually harassed her the past summer. Those allegations complicated Wilker-
son’s renewal process. When prodded why the school had not yet renewed
Wilkerson’s contract, Glazebrook told him that his renewal hinged on an inter-
nal investigation. That inquiry, headed by the University’s Office of Equal Op-
portunity (OEO), found no violation of the University’s consensual relationship
policy and insufficient evidence of sexual harassment.
Glazebrook then checked with the University’s general counsel and the
dean about renewing Wilkerson’s contract. Though school policies gave
Glazebrook an integral role in deciding whether to hire and retain faculty, they
1 Because this student eventually filed sexual harassment claims against Wilkerson,
the parties use her initials to protect her identity.
2 The litigants dispute whether Wilkerson had informally accepted the Director posi-
tion before or after he kissed C.B. The answer is immaterial to our dispositive immunity
questions.
3
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also contemplated that Glazebrook would consult her department’s “Personnel
Affairs Committee” before recommending Wilkerson’s non-renewal. She did
not do so. Rather, on July 3, 2014, she sent Wilkerson a letter (on University
letterhead) informing him that his appointment would not be renewed. The
letter reminded Wilkerson that his position was “renewable annually at the
option of the University” and instructed him how to appeal.
Wilkerson appealed to the College of Arts and Sciences Ad Hoc Grievance
Committee. That body permitted Wilkerson, with counsel by his side, to pre-
sent, object to, and confront witnesses and evidence during a hearing. At this
hearing, Glazebrook defended her decision by citing Wilkerson’s “poor judg-
ment.” The Committee was unpersuaded. It recommended that the college
dean “reverse the non-renewal decision,” concluding that “the procedural By-
Laws of the Department were violated and . . . Glazebrook provided insufficient
evidence to justify the non-renewal.”
Next was the dean’s review. Defendant-appellant Arthur Goven studied
the Ad Hoc Grievance Committee report, the OEO report, and Glazebrook’s
recommendation. He also spoke separately with Wilkerson and then
Glazebrook. Glazebrook apparently told the dean that Wilkerson had accepted
the job as Director of Graduate Studies before meeting C.B. (This supposedly
ex parte communication is one of Wilkerson’s core objections to his non-renewal
process.) Goven ultimately disagreed with the Committee. By his lights, any
procedural mishaps did not “offset” Wilkerson’s “poor professional judgment,”
because Wilkerson’s “amorous overtures toward a young woman [he] knew or
should have known would be a graduate student . . . placed the [U]niversity in
a compromising situation.”
Wilkerson appealed again, this time to the interim Provost and Vice
President for Academic Affairs—defendant-appellant Warren Burggren. Burg-
4
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gren charged another committee with investigating further. This second com-
mittee interviewed Wilkerson, C.B., Glazebrook, Goven, and several other fac-
ulty members. It then issued a report, opining that Glazebrook “did not follow
due process” because she disregarded the bylaws requiring the Personnel Af-
fairs Committee to appraise her decision. “Nonetheless,” the report observed,
“Wilkerson did indeed exercise poor professional judgment in his interactions
with [C.B.].” It also found Wilkerson’s chief objection—that Dean Goven relied
on ex parte statements regarding when Wilkerson accepted the position of Di-
rector of Graduate Studies—“irrelevant to the final outcome.” As this commit-
tee saw it, “[t]he charge of poor judgment would remain whether or not Wilker-
son was [Director] because his involvement with [C.B.] was not appropriate
given her position as an incoming graduate student and employee in the [Phi-
losophy] Department.” Despite nodding toward a “final outcome,” however, the
report balked; it offered no view on whether to reappoint Wilkerson.
By the time this report issued, Finley Graves had already replaced Burg-
gren as Provost. Graves reviewed the relevant records—including those
Wilkerson gave him—and upheld Glazebrook’s decision. Wilkerson got word
on March 17, 2015, and commenced this lawsuit.
Wilkerson alleges, among other things, (1) a claim under 42 U.S.C. §
1983 for deprivation of his property interest in his job without due process of
law, and (2) tortious interference with his employment contract. 3 He purports
to sue the University administrators in their personal capacities and seeks
compensatory and exemplary damages. 4 The district court denied the admin-
istrators summary judgment on both the merits and immunity grounds for the
3 The district court denied summary judgment on a Title IX claim Wilkerson alleged,
but stayed further proceedings pending this interlocutory appeal.
4 Wilkerson also seeks specific performance on his contract against the University.
That remedy is not at issue on appeal.
5
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§ 1983 due-process claim against Burggren, Glazebrook, and Goven; and the
tortious interference claim against Glazebrook. See Wilkerson v. Univ. of N.
Tex., No. 4:15-CV-00540, 2016 WL 7242766 (E.D. Tex. Dec. 14, 2016).
This interlocutory appeal broaches only the immunity issues—whether
qualified immunity lies against the § 1983 claim, and whether § 101.106(f) of
the Texas Tort Claims Act 5 affords governmental immunity against the inter-
ference claim. The district court said no on both questions. We respectfully dis-
agree.
II.
Typically, a party cannot immediately appeal the denial of summary
judgment. Brown v. Strain, 663 F.3d 245, 248 (5th Cir. 2011); cf. 28 U.S.C. §
1291. But when that denial is “of a motion for summary judgment based on
qualified immunity,” the ruling “is immediately appealable under the collat-
eral order doctrine to the extent that it turns on an issue of law.” Melton v.
Phillips, 875 F.3d 256, 261 (5th Cir. 2017) (en banc) (quotation marks omitted).
So, too, for the denial of immunity under § 101.106(f) of the Texas Tort Claims
Act. See Cantu v. Rocha, 77 F.3d 795, 803–04 (5th Cir. 1996) (noting that the
denial of state-law immunity is immediately appealable if the doctrine “pro-
vides a true immunity from suit and not a simple defense to liability” (quota-
tion marks omitted)); McFadden v. Olesky, 517 S.W.3d 287, 294–95, 298 (Tex.
App.—Austin 2017, pet. denied) (holding that § 101.106(f) renders officers “im-
mune from suit” and “completely bar[s]” certain tort claims (collecting cases)).
We may hear this interlocutory appeal because it presents no material disputes
over what happened or what the relevant documents say—just disagreements
over their legal import.
In this posture, “[i]f the district court found that genuine factual disputes
5 Tex. Civ. Prac. & Rem. Code § 101.106(f).
6
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exist, we must accept the plaintiff’s version of the facts as true to the extent
supported by the summary judgment record.” Pasco ex rel. Pasco v. Knoblauch,
566 F.3d 572, 576 (5th Cir. 2009). We therefore “review the complaint and rec-
ord to determine whether, assuming that all of [plaintiff]’s factual assertions
are true, those facts are materially sufficient to establish that defendants” are
not immune. Wagner v. Bay City, Tex., 227 F.3d 316, 320 (5th Cir. 2000); see
also Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (“[O]nce a state offi-
cial . . . asserts the [qualified immunity] defense, the burden shifts to the plain-
tiff to show that the defense is not available.”). Still, we may examine de novo
whether any factual disputes are material. Kovacic v. Villarreal, 628 F.3d 209,
211 n.1 (5th Cir. 2010).
III.
The district court erred in denying the administrators qualified immun-
ity against the § 1983 claim because Wilkerson did not have a clearly estab-
lished property right.
Wilkerson’s due-process theory requires him to identify a protected life,
liberty, or property interest and prove that “governmental action resulted in a
deprivation of that interest.” Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir.
2010) (quotation marks omitted). Though he asserts a federal claim, it is state
law that defines his constitutional stake—Wilkerson enjoys a property interest
in his lectureship if he has “‘a legitimate claim of entitlement’ created and de-
fined ‘by existing rules or understandings that stem from an independent
source such as state law.’” Id. (emphasis added) (quoting Bd. of Regents v. Roth,
408 U.S. 564, 577 (1972)).
In turn, the doctrine of qualified immunity guards officials from civil li-
ability “so long as their conduct ‘does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’” Mul-
lenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Pearson v. Callahan, 555 U.S.
7
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223, 231 (2009)); see also DePree v. Saunders, 588 F.3d 282, 287–90 (5th Cir.
2009) (extending qualified immunity to university administrators for discipli-
nary decisions). A plaintiff pierces this shield by showing “(1) that the official
violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
We may resolve either prong first. Id.
“A clearly established right is one that is ‘sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.’” Lincoln v. Barnes, 855 F.3d 297, 301 (5th Cir. 2017) (quoting Reichle v.
Howards, 566 U.S. 658, 664 (2012)). That is, either “controlling authority” or
“a robust consensus of persuasive authority” must “define[] the contours of the
right in question with a high degree of particularity.” Morgan v. Swanson, 659
F.3d 359, 371–72 (5th Cir. 2011) (en banc) (quotation marks omitted). This in-
quiry “must be undertaken in light of the specific context of the case, not as a
broad general proposition.” Mullenix, 136 S. Ct. at 308 (quotation marks omit-
ted).
Wilkerson asserts a constitutionally protected property interest in his
continued employment for five years. The district court agreed, reasoning that
Wilkerson had a five-year appointment and thus a “reasonable expectation of
continued employment in his fourth year of a five-year commitment.” Wilker-
son, 2016 WL 7242766, at *10.
But this purported right was dubious at best. 6 Section 51.943(g) of the
The administrators argue that this is an easy case because Wilkerson was an “at-
6
will” employee whom the University could have terminated at any time for any reason. Cf.
Montgomery Cty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998) (discussing at-will
employment). We disagree. Wilkerson’s employment contract gave him a 9-month base salary
and a “one-year appointment.” And Texas courts observe that “[a] hiring based on an agree-
ment of an annual salary limits in a meaningful and special way the employer’s prerogative
8
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Texas Education Code, which governs how public universities renew faculty
contracts, limits a non-tenured teacher’s rights to his or her contract. See Tex.
Educ. Code. § 51.943(g) (“Nothing in this section shall be deemed to provide a
faculty member who does not hold tenure additional rights, privileges, or rem-
edies or to provide an expectation of continued employment beyond the period
of a faculty member’s current contract.”).
Wilkerson’s contract is similarly unavailing. It gave him a “temporary,
non-tenurable, one-year appointment.” True, it also contemplated “a five-year
commitment to renew,” but “at the option of the University.” Neither the con-
tract nor the policies it incorporated required the University to exercise that
option. And though the University twice re-upped Wilkerson’s contract, “[s]uc-
cessive renewals of a teacher’s contract . . . do[] not constitute evidence of [d]e
facto tenure policy” or “any implied agreement on the part of the school . . . that
a teacher has a contractual right of renewal so long as the work performed is
satisfactory.” Hix v. Tuloso-Midway Indep. Sch. Dist., 489 S.W.2d 706, 710
(Tex. Civ. App.—Corpus Christi 1972, writ ref’d n.r.e.). Against this backdrop,
a reasonable administrator could have concluded that Wilkerson had no legit-
imate claim of employment beyond his current one-year appointment. The ad-
ministrators did not violate clearly established law.
Wilkerson urges an opposite conclusion for two unpersuasive reasons.
The first is that any reasonable official would have known that Wilkerson had
a legitimate claim to his job for five years—i.e., the length of the school’s com-
mitment to renew at its option. Cf. Wilkerson, 2016 WL 7242766, at *10. But
to discharge the employee during the dictated period of employment.” Lee-Wright, Inc. v.
Hall, 840 S.W.2d 572, 577 (Tex. App.—Houston [1st Dist.] 1992, no writ) (citing Winograd v.
Willis, 789 S.W.2d 307, 310 (Tex. App.—Houston [14th Dist.] 1990, writ denied)). But even
with a one-year appointment, Wilkerson still lacked a clearly established property interest
in subsequent contract renewals.
9
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that view blurs the University’s option to renew with Wilkerson’s appoint-
ment. 7
Second, Wilkerson posits that the Supreme Court’s decision in Perry v.
Sindermann settled the debate over his rights. See 408 U.S. 593 (1972). To be
sure, the district court relied on Sindermann to hold that Wilkerson had a
clearly established right to “continued employment in his fourth year of a five-
year commitment” because the University “created a series of rules and under-
standings” based on “representations made by Glazebrook, coupled with [the
University]’s history of renewals of [Wilkerson] and other lecturers.” Wilker-
son, 2016 WL 7242766, at *10. But Sindermann does not answer the constitu-
tional question posed here: whether Texas law recognizes a multi-year prop-
erty interest in a job when the controlling contract provides an untenured, one-
year appointment and the applicable bylaws disavow any expectation of con-
tinued employment beyond the current appointment period. See Mullenix, 136
S. Ct. at 308 (the “clearly established” inquiry “must be undertaken in light of
the specific context of the case, not as a broad general proposition” (citations
and quotation marks omitted)); Morgan, 659 F.3d at 372 (precedent must de-
fine the asserted right’s contours “with a high degree of particularity”).
Sindermann’s bearing here is uncertain. That case involved a teacher at
a Texas junior college who sued the school after the administration decided
7 Of course, some of the bylaws are hard enough to decipher that Wilkerson’s points
could carry some purchase. Take these paradoxes: “appointment contracts,” the bylaws in-
struct, “may be for . . . five years [but] are renewed annually”; and even “[m]ulti-year lectur-
ers” are on “one-year contract[s].” The problem for Wilkerson is that the bylaws do not alter
his contract’s plain meaning. Although the bylaws note that some appointments may be for
five years, Wilkerson’s contract says his was for one. More important, the issue here is qual-
ified immunity; to aid Wilkerson, the bylaws must illuminate, not obfuscate. Nor would parol
evidence help, because extrinsic evidence cannot “give the contract a meaning different from
that which its language imports” or “be used to show that the parties probably meant, or
could have meant, something other than what their agreement stated.” First Bank v. Bru-
mitt, 519 S.W.3d 95, 110 (Tex. 2017) (quoting Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg
Peden, P.C., 352 S.W.3d 445, 451 (Tex. 2011)).
10
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against renewing his one-year contract. Sindermann, 408 U.S. at 595. The
teacher averred that the college deprived him of a property interest in contin-
ued employment without due process. Id. at 595, 599. There, and unlike here,
the junior college lacked a formal tenure system. Id. at 596, 600. And there,
unlike here, the junior college circulated a “Faculty Guide” that stated, “The
Administration of the College wishes the faculty member to feel that he has
permanent tenure as long as his teaching services are satisfactory and as long
as he displays a cooperative attitude toward his co-workers and his superiors,
and as long as he is happy in his work.” Id. at 600 (emphasis added). The
teacher therefore aimed to prove that “his long period of service at this partic-
ular State College had no less a ‘property’ interest in continued employment
than a formally tenured teacher at other colleges.” Id. at 601.
Even those remarkable facts earned the teacher a minimal endorsement.
The Supreme Court observed that “[a] teacher . . . who has held his position for
a number of years, might be able to show from the circumstances of this ser-
vice—and from other relevant facts—that he has a legitimate claim of entitle-
ment to job tenure.” Id. at 602 (emphasis added). The Court thus held that the
teacher’s claim survived summary judgment because he “alleged the existence
of rules and understandings, promulgated and fostered by state officials, that
may justify his legitimate claim of entitlement to continued employment ab-
sent ‘sufficient cause.’” Id. at 602–03. Yet, in reaching this conclusion, Sinder-
mann noted that Texas law could still bar the teacher’s due process claim. Id.
at 602 n.7 (“We do not now hold that the respondent has any such legitimate
claim of entitlement to job tenure. . . . If it is the law of Texas that a teacher in
the respondent’s position has no contractual or other claim to job tenure, the
respondent’s claim would be defeated.”).
That is what Texas law seems to do here. Far from inviting Wilkerson
“to feel that he has permanent tenure,” id. at 600, his contract provided a one-
11
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year appointment, and the bylaws and caselaw warned not to expect further
ones, see Hix, 489 S.W.2d at 710 (interpreting Texas law six months after Sin-
dermann issued). Sindermann, then, does not fit here.
But even if Sindermann could be extended broadly, our precedent has
not taken that approach. We have stressed that “[t]he Supreme Court’s holding
[in Sindermann] that an informal understanding may lead to a property inter-
est must . . . be recognized as standing in the absence of an officially promul-
gated position, one way or the other, on the issue of a teacher’s tenure.” Bat-
terton v. Tex. Gen. Land Office, 783 F.2d 1220, 1223 (5th Cir. 1986) (emphasis
added) (interpreting Texas law). “[I]nformal understandings and customs,”
then, “cannot be the source of an employee’s property interest” if the informal
position conflicts with an official one. Id. 8 But by seizing on Glazebrook’s oral
representations and the University’s “history of renewals of [Wilkerson] and
other lecturers,” Wilkerson, 2016 WL 7242766, at *10, the district court over-
looked the contract’s integration clause 9 and put “informal understandings and
customs” above the University’s “officially promulgated position,” Batterton,
8 In cases where, like here, a university established a formal tenure process, we have
held that the “formal tenure process generally precludes a reasonable expectation of contin-
ued employment for non-tenured faculty.” Spuler v. Pickar, 958 F.2d 103, 107 (5th Cir. 1992)
(quotation marks omitted) (interpreting Texas law); see also Whiting v. Univ. of S. Miss., 451
F.3d 339, 346 (5th Cir. 2006) (“[W]here a tenure policy exists, non-tenured university em-
ployees under Mississippi law do not have a property interest in their continued employment
that warrants protection under the due process clause.”); Staheli v. Univ. of Miss., 854 F.2d
121, 124 (5th Cir. 1988) (“The institution of tenure has an inexorable internal logic: the very
existence of a tenure system means that those teachers without tenure are not assured of
continuing employment.”).
9 See, e.g., First Bank, 519 S.W.3d at 109–10 (“When parties have a valid, integrated
written agreement, the parol-evidence rule precludes enforcement of prior or contemporane-
ous agreements. As a result, extrinsic evidence cannot alter the meaning of an unambiguous
contract. Courts may consider the context in which an agreement is made when determining
whether the contract is ambiguous, but the parties may not rely on extrinsic evidence to
create an ambiguity or to give the contract a meaning different from that which its language
imports.” (citations and quotation marks omitted)).
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783 F.2d at 1223; see also Hix, 489 S.W.2d at 710. Clearly established law prob-
ably foreclosed, not welcomed, Wilkerson’s due process claim. 10
We therefore reverse and render qualified immunity to the administra-
tors on the § 1983 claim. Accord King v. Handorf, 821 F.3d 650, 655 (5th Cir.
2016).
IV.
State law compels a similar result on the tortious interference claim.
Though Wilkerson alleges she acted in her personal capacity, Glazebrook gets
governmental immunity. 11 See Tex. Civ. Prac. & Rem. Code § 101.106(f).
Tortious interference comprises four elements: “(1) that a contract sub-
ject to interference exists; (2) that the alleged act of interference was willful
and intentional; (3) that the willful and intentional act proximately caused
damage; and (4) that actual damage or loss occurred.” ACS Inv’rs, Inc. v.
McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).
This claim, however, falls within the scope of the Texas Tort Claims Act.
See Anderson v. Bessman, 365 S.W.3d 119, 123–26 (Tex. App.—Houston [1st
10 The district court also denied the administrators summary judgment on the merits,
finding triable questions whether the plaintiff reasonably believed he had a five-year employ-
ment interest. See Wilkerson, 2016 WL 7242766, at *4–6. In focusing on Wilkerson’s reason-
able belief, the court parsed Sindermann and distinguished five cases, including Spuler, Sta-
heli, and Whiting, on their facts. See id. That approach, though appropriate on the merits
issues, undermines the qualified immunity analysis—which requires asking a different ques-
tion about a different party. See, e.g., Morgan, 659 F.3d at 371 (“[W]e must ask whether the
law so clearly and unambiguously prohibited [the officer’s] conduct that every reasonable of-
ficial would understand that what he is doing violates the law.” (second emphasis added)
(brackets and quotation marks omitted)).
11 Although Glazebrook raised the Texas Tort Claims Act in her motions to dismiss
and for summary judgment, the district court did not address that defense. The issue is none-
theless ripe because the trial court resolved the defense’s key element—whether the defend-
ant acted within the scope of employment—in the related context of common law “official
immunity.” Compare Wilkerson, 2016 WL 7242766, at *10 (“[T]he Court finds that
Glazebrook was not acting within the scope of her authority.”), with Tex. Civ. Prac. & Rem.
Code § 101.106(f) (granting governmental immunity to state officials who act “within the
general scope of [their] employment”).
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Dist.] 2011, no pet.). Section 101.106(f) of the Act affords state employees gov-
ernmental immunity. See Franka v. Velasquez, 332 S.W.3d 367, 369 (Tex.
2011); see also Newman v. Obersteller, 960 S.W.2d 621, 623 (Tex. 1997). The
statute provides,
If a suit is filed against an employee of a governmental unit based
on conduct within the general scope of that employee’s employ-
ment and if it could have been brought under this chapter against
the governmental unit, the suit is considered to be against the em-
ployee in the employee’s official capacity only. On the employee’s
motion, the suit against the employee shall be dismissed unless
the plaintiff files amended pleadings dismissing the employee and
naming the governmental unit as defendant on or before the 30th
day after the date the motion is filed.
Tex. Civ. Prac. & Rem. Code § 101.106(f). When it applies, § 101.106(f) “man-
dates[] plaintiffs to pursue lawsuits against governmental units rather than
their employees,” Tex. Adjutant Gen.’s Office v. Ngakoue, 408 S.W.3d 350, 352
(Tex. 2013), and entitles the employee “to dismissal” of the relevant tort claim,
Laverie v. Wetherbe, 517 S.W.3d 748, 752 (Tex. 2017); see also Anderson, 365
S.W.3d at 126 (dismissing on § 101.106(f) grounds faculty members’ tortious
interference claims against university administrators).
Glazebrook meets both elements of governmental immunity: (1) her con-
duct was “within the general scope of [her] employment” with a governmental
unit, 12 and (2) Wilkerson’s tortious interference claim “could have been
brought” against the University. Tex. Civ. Prac. & Rem. Code § 101.106(f). 13
12 Wilkerson concedes that Glazebrook was a University employee. And no doubt the
University is a “governmental unit.” See Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 222 (Tex.
App.—Fort Worth 2003, pet. denied); see also Tex. Civ. Prac. & Rem. Code § 101.001(3)(D);
Tex. Educ. Code §§ 61.003(3), (4).
13 Glazebrook also argues that she prevails because (1) Wilkerson had only a one-year
contract and thus a non-renewal does not interfere with his then-existing contractual inter-
est, and (2) an agent generally cannot interfere with her principal’s contracts. Though
Glazebrook couches these arguments as addressing “immunity,” they actually embrace the
merits—whether Wilkerson can prove she interfered with his contract. That is a question we
14
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A.
First we consider whether Glazebrook acted within the “general scope”
of her employment when she allegedly interfered with Wilkerson’s contract.
We conclude that she did act within that scope.
By contrast, the district court held, and Wilkerson maintains, that
Glazebrook exceeded her scope because she lacked “any general authority to
terminate [Wilkerson] without an initial recommendation by the [Personnel
Affairs Committee].” Wilkerson, 2016 WL 7242766, at *10. That is too narrow
a view. After all, the Act defines “[s]cope of employment” as “the performance
for a governmental unit of the duties of an employee’s office or employment,”
which “includes being in or about the performance of a task lawfully assigned
to an employee by competent authority.” Tex. Civ. Prac. & Rem. Code §
101.001(5) (emphasis added).
Texas caselaw further cautions against a narrow view. “The employee’s
acts must be of the same general nature as the conduct authorized or incidental
to the conduct authorized to be within the scope of employment.” Laverie, 517
S.W.3d at 753 (emphasis added) (quoting Goodyear Tire & Rubber Co. v.
Mayes, 236 S.W.3d 754, 757 (Tex. 2007)). We must ask, “Is there a connection
between the employee’s job duties and the alleged tortious conduct?” Id. The
answer, the Texas courts advise, “may be yes even if the employee performs
negligently or is motivated by ulterior motives or personal animus.” Id. (col-
lecting cases).
Glazebrook acted within the general scope because a “connection” exists
between her job duties and alleged misconduct. See id. No one disputes that
cannot answer on this interlocutory appeal. See BancPass, Inc. v. Highway Toll Admin.,
L.L.C., 863 F.3d 391, 397 (5th Cir. 2017).
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the University requires its department chairs to play pivotal roles in reappoint-
ing faculty. The University’s constitution provides that department chairs
shall make their own recommendations whether to retain faculty—recommen-
dations the dean must review. Nor is there doubt that Wilkerson’s non-renewal
letter looks official. Glazebrook penned it on University letterhead, addressed
it to a University employee, and signed it as the Philosophy Department
“Chair.” And it is not just the letter’s form—it is all business in substance, too.
Those undisputed facts show that Glazebrook’s conduct was “of the same gen-
eral nature as the conduct authorized or incidental to the conduct authorized”
by the University. Id. (quotation marks omitted). We fail to see how a depart-
ment chair could, as Wilkerson alleges, effectively discharge a University em-
ployee—and thus trigger a formal appeals process—while acting ultra vires
and in a personal capacity.
This case therefore differs from those where Texas courts found that gov-
ernment employees acted outside the scope of employment. In those matters,
the alleged misconduct had nothing to do with the employees’ duties. See, e.g.,
Kelemen v. Elliott, 260 S.W.3d 518, 524 (Tex. App.—Houston [1st Dist.] 2008,
no pet.) (on-duty police officer acted outside scope of employment when he
kissed a fellow officer without consent); Terrell ex rel. Estate of Terrell v. Sisk,
111 S.W.3d 274, 278 (Tex. App.—Texarkana 2003, no pet.) (county judge’s sec-
retary acted outside scope of employment when she caused a fatal accident
while driving in her private car to a personal doctor’s appointment).
Nor does it matter that Glazebrook neglected some procedures before
sending the non-renewal letter. Consider City of Lancaster v. Chambers, where
the Texas Supreme Court held that on-duty police officers acted within the
scope of their duties during a high-speed chase—even though the officers dis-
regarded the safety of others and severely injured an innocent motorcyclist.
16
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883 S.W.2d 650, 652, 658 (Tex. 1994). 14 The high bench criticized the lower
court for fixating on whether the officers had “authority to drive without due
regard for the safety of others.” Id. at 658. Such a granular focus, the Texas
Supreme Court observed, “misconceives the scope of authority element.” Id.
The issue is not whether the government employee had authority to commit
the allegedly tortious act, but whether she was “discharging the duties gener-
ally assigned to her.” Id.
The Texas Court of Appeals took a similar tack in Koerselman v. Rhyn-
ard, 875 S.W.2d 347 (Tex. App.—Corpus Christi 1994, no writ). In that case, a
professor who failed to gain tenure sued his department chair for tortious in-
terference after the chair ignored university procedures. Id. at 349. To be sure,
that department chair erred; he was supposed to put pertinent evaluations in
the plaintiff’s tenure file but “instead allowed the candidates to create their
own tenure files.” Id. at 350. That blunder prevented a committee from seeing
all salient opinions before denying the plaintiff tenure. Id. But the court still
granted the chair immunity, reasoning that “[e]ven though [the chair’s] act
may have been wrong, it was done in connection with his official duty as the
department chair to oversee the tenure election process; therefore, [he] was
14 City of Lancaster involved Texas’s “official immunity” defense. See 883 S.W.2d at
653. (Glazebrook also raised that defense, but it is unnecessary to resolving this appeal.) This
common law doctrine affords government employees “immunity from suit from the perfor-
mance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within
the scope of their authority.” Id. The “scope of . . . authority” under official immunity is nearly
identical with “scope of employment” under the Texas Tort Claims Act. Compare id. at 658
(“An official acts within the scope of her authority [for official immunity purposes] if she is
discharging the duties generally assigned to her.”), with Tex. Civ. Prac. & Rem. Code §
101.001(5) (defining “[s]cope of employment” as “the performance for a governmental unit of
the duties of an employee’s office or employment,” which “includes being in or about the per-
formance of a task lawfully assigned to an employee by competent authority”). See also
Laverie, 517 S.W.3d at 752–53 (relying on City of Lancaster to define § 101.106(f)’s “scope of
employment” element).
17
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acting within the scope of his employment.” Id. In the court’s view, “that a spe-
cific act that forms the basis of the suit may have been wrongly or negligently
performed does not take it outside of the scope of authority.” Id.
Though Glazebrook’s argument is not as air-tight as the Koerselman de-
fendant’s was—unlike that defendant, Glazebrook leapfrogged a department
committee and instead consulted the dean and general counsel—Koerselman’s
logic still obtains. Glazebrook’s job required keeping tabs on lecturer-appoint-
ments and making recommendations for future employment. Thus, even if
Glazebrook acted “wrongly” by skipping appropriate procedures, her actions
were “in connection with [her] official duty as department chair to oversee the
[lecturer appointment] process[.]” Id.; see also Anderson, 365 S.W.3d at 124
(“[Section 101.106(f)] strongly favors dismissal of governmental employees.”). 15
Glazebrook acted within the general scope of her employment.
B.
The next question is whether Wilkerson’s tortious interference claim
“could have been brought” against the University. Tex. Civ. Prac. & Rem. Code
§ 101.106(f). The answer is yes. See, e.g., Franka, 332 S.W.3d at 369 (“[A]ll
common-law tort theories alleged against a governmental unit are assumed to
be ‘under the Tort Claims Act’ for purposes of section 101.106.” (alterations and
quotation marks omitted)). 16
We recognize that at first blush it seems nonsensical to assert that
15 Wilkerson also insists that Glazebrook cannot get governmental immunity because
she acted “for her own motivations.” This argument founders because “[g]overnment employ-
ees are not required to prove their subjective intent behind an allegedly tortious act in order
to be dismissed from a suit pursuant to [§ 101.106(f)].” Laverie, 517 S.W.3d at 756.
16 In determining whether a claim “could have been brought under [the Texas Tort
Claims Act] against the governmental unit,” § 101.106(f), it does not matter that the Univer-
sity would be immune from suit, see Tex. Dep’t of Aging & Disability Servs. v. Cannon, 453
S.W.3d 411, 415 (Tex. 2015); Franka, 332 S.W.3d at 379.
18
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Wilkerson could have brought his tortious interference claim against the Uni-
versity. To win, Wilkerson would have to prove that his employer interfered
with his employment contract—a legal impossibility, as “one cannot tortiously
interfere with one’s own contract.” Hussong v. Schwan’s Sales Enters., Inc., 896
S.W.2d 320, 326 (Tex. App.—Houston [1st Dist.] 1995, no writ). But Texas
caselaw has resolved this difficulty. Take, for instance, Anderson v. Bessman.
There, some fired faculty members sued their university’s administrators for
tortious interference with the plaintiffs’ employment contracts. 365 S.W.3d at
123. Held the Anderson court: because tortious interference is a “tort claim[],”
it “could have been brought under the Tort Claims Act” against the univer-
sity—i.e., the plaintiffs’ employer. Id. at 126. Section 101.106(f), then, asks not
whether Wilkerson can succeed on the merits, but whether his claim sounds in
tort. See id.; see also Franka, 332 S.W.3d at 381 (noting that a cause of action
“could have been brought under the Act” if the “claim is in tort and not under
another statute that independently waives immunity”). 17
Because tortious interference (as its name suggests) is a tort, see Ander-
son, 365 S.W.3d at 126, Wilkerson’s claim against Glazebrook in her personal
capacity is “foreclose[d],” Franka, 332 S.W.3d at 381, and can be pursued
against only the University, see Ngakoue, 408 S.W.3d at 352. The district court
should have granted Glazebrook governmental immunity.
* * *
We REVERSE and RENDER on both immunity issues.
17 Again, detaching immunity questions from merits issues makes sense in an inter-
locutory appeal about immunity. See BancPass, 863 F.3d at 397.
19