IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-20502
c/w 98-20123
____________________
EUGENE M. DECKER, III, Dr.,
Plaintiff-Appellant,
versus
THE UNIVERSITY OF HOUSTON;
CLAUDINE GIACCHETTI, Dr.;
JULIAN OLIVARES, Dr.; JAMES PIPKIN, Dr.,
Defendants-Appellees.
_________________________________________________________________
Appeals from the United District Court for the
Southern District of Texas
(H-96-CV-1672)
_________________________________________________________________
September 15, 1998
Before GARWOOD, JOLLY, and HIGGINBOTHAM, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
The plaintiff-appellant, a tenured professor at the University
of Houston, appeals the district court’s entry of summary judgment
in the defendants’ favor, arguing that the district court
erroneously dismissed (1) his First Amendment and Texas
Whistleblower Act claims as barred by the statute of limitations,
(2) his defamation claim on the basis of qualified privilege, and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
(3) his due process and intentional infliction of emotional
distress claims.
This appeal also presents the question whether a public
employee’s cause of action for employment discrimination may be
brought under Title II of the Americans with Disabilities Act
(“ADA”) and, if so, whether public employees must exhaust
administrative remedies before seeking judicial redress. We affirm
the judgment as a matter of law without deciding the questions of
whether a public employee may bring a claim for employment
discrimination under Title II of the ADA or whether plaintiffs
seeking such relief are bound by the exhaustion requirement of the
administrative regime applicable to claims for discrimination under
Title I.
I
Eugene Decker is a tenured1 associate professor at the
University of Houston where he has taught for nearly thirty years.
As a young man, he battled Hodgkins disease with extensive
radiation therapy that left his larynx and jaw severely damaged.
As a result, he suffers from certain debilitating symptoms and has
been advised by his doctor not to teach consecutive classes without
a brief respite between lectures. The defendants2 were made aware
1
Decker first received tenure in 1973 in the French Department
and later in the Department of Modern and Classical Languages after
a 1994 consolidation.
2
The defendants include the University of Houston; Dr.
Claudine Giacchetti, the administration’s appointee to the Faculty
2
of Decker’s limitations and previously had accommodated his request
with respect to the scheduling of his courses.
In 1986, Decker learned of an alleged sham set up by the
defendants to obtain funding from the State.3 Decker protested the
practice for several years, but it was not until May 1993 that he
publicly complained to the state auditor. According to Decker, the
discrimination and retaliation began soon afterwards. The
defendants purportedly plotted that Decker would receive low merit
evaluations4 and that the evaluations would, in turn, adversely
affect salary and promotion decisions. In furtherance of this
objective, Dr. Olivares sent Decker an allegedly defamatory
memorandum that Olivares subsequently published to Drs. Pipkin and
Giacchetti. In addition, the defendants assigned Decker
consecutive courses to teach despite his requests for reasonable
scheduling adjustments. The subsequent workload (and an internally
Personnel Committee--the committee that reviews faculty
performances for merit evaluations; Dr. Julian Olivares, Chair of
the Department of Modern and Classical Languages; and Dr. James
Pipkin, at the time the Associate Dean or Dean of the College who
supervised the graduate program.
3
The State provides funds to the University of Houston under
a formula premised on the number and level of classes taught.
Graduate courses generate more funds than do undergraduate classes.
The graduate program offers “paper courses” to students who wish to
participate in these independent study courses. According to
Decker, however, these courses never meet and the students perform
no work.
4
The merit rating system was as follows: “1" equaled
“unsatisfactory”; “2" equaled “adequate”; “3" equaled “merit”; and
“4" equaled “special merit.”
3
hemorrhaging tumor) caused Decker to take medical leave for part of
the Spring 1995 semester, the Fall 1995 semester, and the Spring
1996 semester. Decker filed suit on May 24, 1996.
II
Decker presented various theories of recovery in his
complaint. He alleged that the defendants violated the First
Amendment and the Texas Whistleblower Act, respectively, by
retaliating against him after he publicly spoke out about his
concern with the University’s practice of offering “paper courses.”
Decker further alleged that the defendants violated the ADA by
refusing reasonably to accommodate his physical limitations. He
alleged that the defendants violated his due process rights, that
they defamed him, and that they intentionally inflicted upon him
emotional distress.5 In due course, the defendants filed a motion
for summary judgment that the district court granted in all
respects. Decker now appeals.
III
Our standard of review is well established. We review a
district court’s grant of summary judgment de novo, applying the
same standard as would the district court. Melton v. Teachers Ins.
& Annuity Ass’n of Am., 114 F.3d 557, 559 (5th Cir. 1997); Estate
of Bonner v. United States, 84 F.3d 196 (5th Cir. 1996). Summary
5
Decker also sued for negligent infliction of emotional
distress, but he has failed to appeal the dismissal of this claim
and it is not before us.
4
judgment is proper where the pleadings and summary judgment
evidence present no genuine issue of material fact and the moving
party is entitled to a judgment as a matter of law. Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). A
factual dispute will preclude an award of summary judgment if the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party. Anderson v. Liberty Lobby, Inc., 106 S.Ct.
2505, 2510 (1986). When ruling on a motion for summary judgment,
the inferences to be reasonably drawn from the underlying facts in
the record must be viewed in the light most favorable to the
nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio, 106 S.Ct.
1348, 1356 (1986). The court may not weigh the evidence nor make
credibility determinations. Anderson, 106 S.Ct. at 2511.
A
Decker first challenges the district court’s dismissal of his
First Amendment claim on statute of limitations grounds. Federal
courts look to the applicable statute of limitations of the state
in which they are sitting for claims brought under 42 U.S.C.
§ 1983. Frazier v. Garrison I.S.D., 980 F.2d 1514, 1521 (5th Cir.
1993) (citing Wilson v. Garcia, 471 U.S. 261, 276 (1985); Johnson
v. Railway Express Agency, 421 U.S. 454, 462 (1975)). The parties
do not dispute that the Texas two-year limitations period applies
to Decker’s constitutional claim. See Piotrowski v. City of
Houston, 51 F.3d 512, 515 n.5 (5th Cir. 1995); Helton v. Clements,
832 F.2d 332, 334 (5th Cir. 1987); Tex.Civ.Prac.& Rem. Code Ann.
5
§ 16.003 (Vernon 1986) (“A person must bring suit for . . .
personal injury . . . not later than two years after the day the
cause of action accrues.”).
Under Texas law, “accrual occurs on the date ‘the plaintiff
first becomes entitled to sue the defendant based upon a legal
wrong attributed to the latter,’ even if the plaintiff is unaware
of the injury.” Vaught v. Showa Denko K.K., 107 F.3d 1137, 1140
(5th Cir. 1997) (quoting Zidell v. Bird, 692 S.W.2d 550, 554
(Tex.Ct.App. 1985)). The limitations period thus begins to run
when the claimant “knows or has reason to know of the injury which
is the basis for the action.” Kline v. North Tex. State Univ., 782
F.2d 1229, 1232 (5th Cir. 1986).
The district court held that the statute of limitations began
to run with respect to Decker’s cause of action after March 20,
1986, when he first began to suspect that he was experiencing
retaliation with respect to his salary and that he thus forfeited
his right to bring this cause of action after the expiration of two
years. Because of the difficult questions presented by attempting
properly to apply the statute of limitations to the several events
at issue, we will avoid wrestling with this matter; instead we will
lean on the rule that we may uphold the district court’s decision
if there appears in the record any other basis for the proper
dismissal of this claim. Bramblett v. C.I.R., 960 F.2d 526, 530
(5th Cir. 1992). We will assume that the allegations are timely
and examine the underlying merits of Decker’s claim.
6
To establish a prima facie case of retaliation actionable
under the First Amendment, a plaintiff must prove that: (1) the
defendants were acting under color of state law; (2) the speech
activities in question were protected under the First Amendment;
and (3) the plaintiff’s exercise of his protected rights was a
substantial or motivating factor in the defendants’ actions.
Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997); Pierce v.
Texas Dep’t of Crim. Justice, 37 F.3d 1146, 1149 (5th Cir. 1994).
The parties do not dispute the plaintiff’s establishment of the
first two factors.
Decker must demonstrate, however, that he “suffered an adverse
employment action for exercising [his] right to free speech.”
Pierce, 37 F.3d at 1149. This court on numerous occasions has
explicated what actions constitute decisions actionable as
retaliation. See Mattern v. Eastman Kodak Co., 104 F.3d 702,
707-08 (5th Cir. 1997) (excluding from the definition of an adverse
employment action disciplinary filings, supervisor’s reprimands--
”anything which might jeopardize employment in the future”); Dollis
v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)(holding Title VII
protects against retaliation with respect to ultimate employment
decisions such as hiring, granting leave, discharging, promoting,
and compensating). “Not every negative employment decision or
event is an adverse employment action that can give rise to a
discrimination or retaliation cause of action under section 1983.”
7
Southard v. Texas Board of Crim. Justice, 114 F.3d 539, 555 (5th
Cir. 1997).
Decker complains of receiving two low merit evaluation ratings
and of Olivares’s publication of his allegedly defamatory
memorandum.6 These decisions had only a tangential effect, if
that, on Decker’s employment and fail to give rise to a cause of
action for retaliation. See Harrington, 118 F.3d at 365 (“Many
actions which merely have a chilling effect upon protected speech
are not actionable.”). The defendants’ actions of which Decker
complains were not ultimate employment decisions. In fact, Decker
remains a fully tenured faculty member. “Actions such as
‘decisions concerning teaching assignments, pay increases,
administrative matters, and departmental procedures,’ while
extremely important to the person who has dedicated his or her life
to teaching, do not rise to the level of a constitutional
deprivation.” Id. (quoting Dorsett v. Board of Trustees for State
Colleges & Univs., 940 F.2d 121, 123 (5th Cir. 1991)); Mattern, 104
F.3d at 708 (noting missed pay increase does not constitute
ultimate employment decision). We therefore affirm the district
court’s dismissal of the First Amendment claim on the alternate
6
Decker also maintains that the defendants threatened his
tenured job and promised him perpetually low ratings. The record
provides less than scant evidence with respect to these assertions.
Even if supportable, an employer’s threat to take certain action--
as opposed to the action itself--does not qualify as an adverse
employment decision. Mattern, 104 F.3d at 708 (noting verbal
threat of discharge fails to suffice as an adverse employment
action).
8
ground that Decker suffered no actionable adverse employment
decision.
B
Decker also argues that the district court erred in dismissing
his Texas Whistleblower Act (“TWA”) claim, a ruling also premised
on statute of limitations grounds. The TWA provides that a
plaintiff seeking relief “must sue not later than the 90th day
after the date on which the alleged violation of this chapter: (1)
occurred; or (2) was discovered by the employee through reasonable
diligence.” Tex.Gov.Code Ann. § 554.005 (Vernon 1994). The
district court determined that Decker “first became aware that he
was being retaliated against . . . in January 1994.” The court
then determined that Decker “forfeited his right to seek relief
under the [TWA] by waiting almost two and a half years to file this
lawsuit.”
As with Decker’s First Amendment claim, we forego engaging in
any discussion with respect to the statute of limitations issue.
We again rely on the rule that if other grounds exist that will
suffice to uphold the district court’s decision, we may affirm on
those alternate grounds, Bramblett, 960 F.2d at 530, and we turn to
examine the merits of his claim.
To prevail under the TWA, Decker must demonstrate that:
1) he reported to an appropriate law enforcement
authority a good faith belief that the defendants were
violating the law; and
9
2) the defendants discriminated against him because of
his reporting actions.
Tex.Gov.Code Ann. §§ 554.002-554.003 (Vernon Supp. 1998)7; Forsyth
v. City of Dallas, Tex., 91 F.3d 769, 775 (5th Cir. 1996) (noting
that “employee must demonstrate that (a) the employee reported an
alleged violation of law to an appropriate law enforcement
authority; (b) the employee made the report in good faith; (c) the
employer took an adverse employment action against the employee
because the employee made the report; and (d) the employer’s action
proximately caused the employee’s injuries”).
Decker maintains that he reported to the state auditor the
University’s allegedly fraudulent practice of receiving state funds
for sham paper courses. The defendants do not dispute that Decker
took this action or that it suffices under the first reporting
requirement. Decker further maintains that genuine issues of fact
exist with respect to whether he has demonstrated that the
defendants took adverse personnel actions against him when they did
because of his protected activities. Department of Human Servs. v.
Hinds, 904 S.W.2d 629, 636 (Tex. 1995) (noting plaintiff must
demonstrate employer’s prohibited conduct would not have occurred
7
The Act provides:
A state or local governmental entity may not suspend or
terminate the employment of, or take other adverse
personnel action against, a public employee who in good
faith reports a violation of law by the employing
governmental entity or another public employee to an
appropriate law enforcement authority.
Tex.Gov.Code Ann. § 554.002(a) (Vernon Supp. 1998).
10
when it did absent plaintiff’s protected conduct). The Act defines
“personnel action” to include “an action that affects a public
employee’s compensation, promotion, demotion, transfer, work
assignment, or performance evaluation.” Tex.Gov.Code Ann.
§ 554.001(3). Decker’s receipt of a low merit rating in March 1996
apparently falls within this definition. Hinds, 904 S.W.2d at 631.
The only remaining determination is whether Decker would have
received the low merit rating when he did, absent his protected
reporting conduct. Hinds, 904 S.W.2d at 636. The defendants
contest establishment of this fact of causation. They assert as an
affirmative defense that they would have taken the same action--
issuing a merit rating of “1" in 1996 for the 1995 school year--
even had Decker not tattled to the state auditor in May 1993.
Tex.Gov.Code Ann. § 554.004(b).
First, Olivares submitted that he had no knowledge of Decker’s
whistleblowing actions until Decker filed this lawsuit, and Decker
submitted no contrary evidence. Even had Decker created a genuine
issue of material fact concerning Olivares’s knowledge aforehand,
we fail to see how Decker could have connected Olivares to the low
merit rating he received in 1996. A committee of faculty members
from Decker’s department conducts an annual review to determine
each professor’s productivity for the past year and assign each
professor a merit rating. Olivares was not a member of that
committee. Furthermore, each committee member explained that
Decker received low merit ratings for the 1994 and 1995 school
11
years because they were disappointed by the lack of Decker’s
meritorious productivity--not because he reported allegedly
fraudulent University practices to the state auditor.
Decker also cites as an adverse personnel action the
defendants’ refusal to allow him to appeal the low merit rating.
The defendants showed, however, that Decker passed up two
opportunities to appeal the rating before the deadline passed.
Decker met with Dr. Dowling, the merit evaluation chairperson, the
day before the appeal deadline and he telephoned her the following
day before the noon deadline passed. On neither occasion did
Decker inform Dr. Dowling of his intent to appeal. Because he
missed the deadline, Dr. Dowling--not any of the defendants--
refused to allow the appeal. Based on the record before us, there
is no genuine issue of material fact with respect to the lack of a
causal link between Decker’s low merit rating issued March 1996
(and his failure to appeal that rating) and his protected reporting
actions under the TWA. His protected activities simply played no
role in those challenged decisions.
C
The district court properly dismissed Decker’s intentional
infliction of emotional distress claim. In order to prevail under
Texas law on this claim, a plaintiff must demonstrate
(1) that the defendant acted intentionally or recklessly,
(2) that the defendant’s conduct was extreme and
outrageous, (3) that the defendant’s actions caused the
plaintiff emotional distress, and (4) that the emotional
distress suffered by the plaintiff was severe.
12
Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 195 (5th Cir.
1996). The conduct complained of must be “outrageous” in that it
“surpasses all bounds of decency, such that it is utterly
intolerable in a civilized community.” Id. The employment dispute
at issue in this case fails to meet the standard. Indeed, Decker
apparently concedes this point. Blue Brief at 38 (“Nevertheless,
while preserving this claim on appeal, Dr. Decker recognizes that
the conduct described is not of the same nature that current Fifth
Circuit law recognizes for intentional infliction of emotional
distress to be actionable.”). The district court properly
dismissed this claim.
D
Decker next maintains that the district court erroneously
cloaked a defamatory memorandum written by Olivares with qualified
privilege and thus erroneously dismissed his defamation claim.
Olivares wrote to Decker on June 20, 1995, stating his
dissatisfaction with and the consequences of Decker’s refusal to
teach upper division courses. Olivares published the document to
two other defendants, Drs. Pipkin and Giacchetti. The statements
concern Decker’s business and profession and Decker argues that
they are thus defamatory per se. Olivares contends that the
memorandum is cloaked with qualified immunity and that Decker
failed to demonstrate that the statements were not made in good
faith. The district court granted summary judgment on the basis
13
that the plaintiff failed to demonstrate that Olivares entertained
serious doubts about the veracity of the memorandum.
Under Texas law, a statement is defamatory per se if it is so
obviously injurious that no proof of harm is necessary to prevail
in an action based on the statement. Simmons v. Ware, 920 S.W.2d
438, 451 (Tex.App. 1996) (discussing slander per se). Statements
falling within this category are those that tend to injure a person
in his business or occupation. Gray v. HEB Food Store #1, 941
S.W.2d 327, 329 (Tex. App. 1997); Simmons, 920 S.W.2d at 451. The
parties do not dispute that the statements contained within the
Olivares memorandum concerned Decker’s performance in his
profession. Olivares also does not seriously argue that the
statements were not injurious in nature.8
Instead, the defendants assert that dismissal is proper on the
basis of a qualified privilege. “A privilege will be granted to
statements that occur under circumstances wherein any one of
several persons having a common interest in a particular subject
matter may reasonably believe that facts exist that another,
sharing that common interest, is entitled to know.” Hanssen v. Our
Redeemer Lutheran Church, 938 S.W.2d 85, 92 (Tex.App. 1996); see
also Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646
(Tex. 1995).
8
Although the defendants made no serious argument on this
issue and instead focus on the privilege issue, truth is a complete
defense to a claim of defamation. El Centro del Barrio, Inc. v.
Barlow, 894 S.W.2d 775, 781 (Tex.App. 1994).
14
In this instance, Olivares published his memorandum to two
other faculty members, Pipkin and Giacchetti.9 These two
individuals--the former, an Associate Chair responsible for course
assignments and the latter, the Dean--clearly had a common interest
in the facts set out in Olivares’s memorandum. That this is a
proper situation for the application of a qualified privilege is
not significantly in doubt.
However, an affirmative defense of qualified privilege may be
defeated. Under Texas law, to defeat the affirmative defense, the
plaintiff has the burden at trial of proving malice. Hanssen, 938
S.W.2d at 92. For the purposes of summary judgment, Celotex
requires the burden of proving malice to remain with the
plaintiff.10 Celotex Corp. v. Catrett, 477 U.S. 317, 322 106 S.Ct.
2548, 2552 (1986) (under Fed.R.Civ.P. 56(c), a nonmovant is
required to make a sufficient showing on an essential element of
his case with respect to which he has the burden of proof at
trial); Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 314 (5th
Cir. 1995). Therefore, to avoid summary judgment, Decker has the
9
Decker intimates that Olivares may orally have published the
contents of his memorandum to other individuals. He did not direct
this court’s attention, however, to any evidence in the record
supporting this assertion.
10
The situation is different, however, under Texas summary
judgment law, where the moving party has the burden of proving the
absence of malice. Hanssen, 938 S.W.2d at 93. The nonmovant has
no burden to produce proof on an element of his claim until that
element has been conclusively negated by the movant. Lesbrookton,
Inc. v. Jackson, 796 S.W.2d 276, 286 (Tex.App.-Amarillo 1990, writ
denied 1991).
15
burden of creating a genuine issue of material fact that Olivares
acted with malice when he made the statements in his memorandum.
Id. Malice may be shown where the defendant made a statement with
actual knowledge of its falsity or with reckless disregard of its
falsity. Hanssen, 938 S.W.2d at 92. However, proof must
demonstrate the defendant’s “high degree of awareness of the
statement’s probable falsity.” Id. Applying these standards,
Decker undoubtedly failed to meet his burden. There is no genuine
issue of material fact with respect to Olivares’ reasonable belief
in the truth of his statements in the memorandum.
E
Decker also complains that the district court misconstrued his
due process claims and incorrectly determined that they did not
“rise to the level of a constitutionally protected property
interest.” He has presented arguments under both the substantive
and procedural due process prongs. It is axiomatic that the
procedural due process clause is implicated only if Decker has a
constitutionally recognized interest in property. Johnson v.
Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997); Frazier v. Garrison
I.S.D., 980 F.2d 1514, 1528 (5th Cir. 1993) (citing Cleveland Board
of Educ. v. Loudermill, 470 U.S. 532 (1985); Board of Regents v.
Roth, 408 U.S. 564 (1972)). “Certainly the constitutional right to
‘substantive’ due process is no greater than the right to
procedural due process.” Hardy v. University Interscholastic
League, 759 F.2d 1233, 1235 (5th Cir. 1985) (quoting Jeffries v.
16
Turkey Run Consolidated Sch. Dist., 492 F.2d 1, 4 (7th Cir. 1974)).
As such, we first address whether Decker has a constitutionally
protected property interest in any right he alleges the defendants
infringed.
(1)
The defendants maintain that they did not violate Decker’s
substantive or procedural due process rights under the Fourteenth
Amendment because Decker did not suffer the deprivation of any
property interest. Decker argues that his protected property
interests are “his tenured faculty position and its corresponding
benefits.” Specifically, he maintains that scheduling him to teach
back-to-back courses effectively denied him his property interest
in continued public employment and the attendant benefit of medical
leave.
To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire
for it. He must have more than a unilateral expectation
of it. He must, instead, have a legitimate claim of
entitlement to it. It is a purpose of the ancient
institution of property to protect those claims upon
which people rely in their daily lives, reliance that
must not be arbitrarily undermined.
Board of Regents v. Roth, 92 S.Ct. 2701, 2709 (1972); see also
Frazier v. Garrison I.S.D., 980 F.2d 1514, 1529 (5th Cir. 1993)
(noting plaintiff has constitutionally protected property interest
if he has a reasonable expectation of receiving the benefit). In
addition, a property interest falling under due process protections
must be established by reference to some outside source--such as
17
state law or contract. Martin v. Memorial Hosp. at Gulfport, 130
F.3d 1143, 1147 (5th Cir. 1997) (citing Roth, 92 S.Ct. at 2704).
The interest does not exist independently by force of the due
process clause itself. Furthermore, the limitations of that
interest are also set by the outside source that created the
interest. Id.
The defendants do not dispute that a tenured professor such as
Decker has a protected property right in continued employment.
Decker, however, remains a fully tenured professor at the
University; he has thus not been deprived of any property interest
in continued employment because that employment has not been
interrupted. Furthermore, absent a limiting contractual provision,
Decker has no property right in his assignment of teaching courses.
Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988, 997 (5th Cir.
1992). “[U]nless the state ‘specifically creates a property
interest in a noneconomic benefit--such as a work assignment--a
property interest in employment generally does not create due
process property protection for such benefits.’” Davis v. Mann,
882 F.2d 967, 973 n.16 (5th Cir. 1989) (quoting Jett v. Dallas
Indep. Sch. Dist., 798 F.2d 748, 754 n.3 (5th Cir. 1986)). Decker
has pointed to no written contract or presented evidence of any
oral agreement with the University that the defendants always would
accommodate his scheduling requests. Decker thus has no
18
constitutionally protected right in having nonconsecutively
scheduled courses.11
Decker also submits that he has a protected property interest
in a rational application of the University’s merit evaluation
process. The evidence is not clear as to the exact correlation
between the merit evaluations and pay increases. Apparently,
however, the ratings are the most important factor considered when
determinations of merit salary adjustments are made. The
University has set up and adhered to an established system for
evaluating a professor’s performance of the previous school year.
We will thus assume, without deciding, that genuine issues of
material fact exist with respect to whether Decker obtained a
property interest in an unbiased application of the merit rating
system.
(2)
“‘To succeed with a claim based on substantive due process in
the public employment context, the plaintiff must show two things:
(1) that he had a property interest/right in his employment, and
11
Even if a genuine issue of material fact existed with respect
to Decker’s demonstration of a property right in his class
assignments, he cannot recover absent a showing that the defendants
acted arbitrarily and capriciously when they infringed that
interest. Harrington, 118 F.3d at 368. The defendants assigned
Decker to teach back-to-back courses because of other class
cancellations and Decker’s refusal to teach upper level courses.
There is no genuine issue of fact as to this matter and the
defendants’ actions are thus not irrational so as to violate the
Constitution. Neuwirth v. Louisiana State Bd. Of Dentistry, 845
F.2d 553, 558 (5th Cir. 1988).
19
(2) that the public employer’s termination of that interest was
arbitrary or capricious.’” Harrington, 118 F.3d at 368 (quoting
Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993)).
Assuming the existence of a property interest in the rational
application of the merit evaluation system, we look to whether the
defendants’ assignment of a merit rating of “2" and “1" for the
1994 and 1995 school years, respectively, amounted to some
unconstitutional violation.
As with the defendants’ assignment of courses, there is no
genuine issue of material fact with respect to Decker’s receipt of
two low evaluation ratings. The evaluation committee members
provided affidavits setting out rational and well supported grounds
for the low scores accorded Decker’s performance, including a
dearth of published scholarly papers, lack of research projects,
mediocre to scathing teaching evaluations, and an overall lack of
incentive to serve as demonstrated by his record. Decker submits
that Olivares’s memorandum provides direct proof that his low
ratings had been “pre-ordained” and that he was to receive them in
perpetuity. Notwithstanding Decker’s assertions, the memorandum
merely sets out Olivares’s intention to recommend low evaluation
ratings to the committee (of which he was not a member) until
Decker agreed to teach a full course load including upper level
classes. Assuming Decker possesses a property interest in the
rational application of the evaluation process, the assignment of
20
the two low ratings did not infringe Decker’s substantive due
process rights.
(3)
Decker also argues that the merit evaluation process, as
applied to him, violated his procedural due process guarantees.12
The Supreme Court has set out that notice and a hearing are the
minimum requirements before an individual may constitutionally be
deprived of a property interest. Systems Contractors Corp. v.
Orleans Parish Sch. Bd., ___ F.3d ___, 1998 WL 422633, *3 (5th
Cir.) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976));
Delahoussaye v. City of New Iberia, 937 F.2d 144, 151 (5th Cir.
1991). But, “[d]ue process is flexible and calls for such
procedural protections as the particular situation demands.”
Systems Contractors, 1998 WL 422633, *3 (quoting Mathews, 424 U.S.
at 334).
Decker first complains that the defendants, contrary to
published guidelines, never provided him with written justification
for the “1" rating he received in March 1996 for the 1995 school
year. He also contends that the defendants denied him an
opportunity to appeal this rating. Similarly, he submits that the
defendants refused to allow him an opportunity to appeal the “2"
12
For the purpose of this discussion, we again assume, without
deciding, the existence of the relevant property right.
Furthermore, having previously concluded that no genuine issue of
material fact exists with respect to the defendants’ alleged “pre-
ordination” of low merit ratings for Decker’s performance, we
decline to again address this argument.
21
rating he received in April 1995 for the 1994 school year. The
evidence proves, however, that Decker received notice of the low
ratings and was provided an opportunity to be heard. Specifically,
the defendants informed him of the relevant appeal procedures,
including the deadline for informing the University of his intent
to appeal. Decker allowed the deadlines to expire, thus, waiving
any right to further due process.13 The record is clear--that is,
there is no genuine issue of material fact--that the defendants did
not violate the Constitution by failing to provide Decker adequate
procedural due process.
13
Although Decker maintains that he was on sick leave at the
relevant times of appeal, he does not argue that he lacked notice
of the appeal deadline or that he could not have informed the
defendants of his intent to appeal before the deadline passed.
22
F
Decker argues that the district court erred when it dismissed
his claim that the defendants discriminated against him because of
his alleged disability. The court held that his claim of
employment discrimination was barred under Title II of the
Americans with Disabilities Act (“ADA”) because he failed to adhere
to the administrative regime set out under Title I. The parties
contest whether a claim for employment discrimination is cognizable
under Title II and, if so, whether Title II requires exhaustion of
the administrative remedies set out under Title I prior to the
filing of a lawsuit. These are issues of first impression in this
circuit.14 We need not reach them, however, because the defendants
met their summary judgment burden in demonstrating that Decker did
not suffer an adverse employment decision because of his
disability.
To prevail on his ADA claim, Decker must demonstrate that (1)
he has a disability; (2) he is qualified for the job; (3) an
adverse employment decision was made solely because of his
14
Several courts have addressed this question and the majority
have determined that Title II recognizes claims for employment
discrimination. See Bledsoe v. Palm Beach County Soil & Water
Conservation Dist., 133 F.3d 816 (11th Cir. 1998) (discussing issue
at length); Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522,
1528-29 (11th Cir. 1997) (assuming issue); McNely v. Ocala Star-
Banner Corp., 99 F.3d 1068, 1073 (11th Cir. 1996) (same); Doe v.
University of Maryland Med. Sys. Corp., 50 F.3d 1261, 1265 (4th
Cir. 1995); Wagner v. Texas A & M Univ., 939 F.Supp. 1297, 1308-11
(S.D.Tex. 1996). We, however, need not and do not reach this
question because its determination is unnecessary to the ultimate
resolution of this case.
23
disability. Rizzo v. Children’s World Learning Ctrs., Inc., 84
F.3d 758, 763 (5th Cir. 1996). Decker submits that he suffered
adverse employment actions when (1) he received a merit rating of
“1" while on medical leave; (2) the defendants refused to allow his
appeal of that rating; (3) the defendants assigned him consecutive
courses to teach; and (4) the defendants threatened to fire him.
None of these alleged actions arise to the level of an
actionable adverse employment action under the ADA. As discussed
supra in Part III(A) (discussing adverse employment action in First
Amendment context), Decker has not alleged that he suffered any
type of ultimate employment action. See Mattern, 104 F.3d at 707-
08; Dollis, 77 F.3d at 781-82. None of the alleged retaliatory
acts (from the low merit rating to even the consecutive class
assignments) had anything more than a tangential effect, if that,
on his position. He suffered no decrease in his salary and he
remains a tenured faculty member at the University. Decker’s ADA
claim thus fails.
IV
In sum, the district court did not err when it granted summary
judgment in favor of the defendants against all of Decker’s
claims.15 Without reaching Decker’s argument that his First
15
The district court also did not abuse its discretion in
denying Decker’s Motion for New Trial and to Set Aside Judgment
Under Federal Rule of Civil Procedure 60(b). Carter v. Fenner, 136
F.3d 1000, 1005 (5th Cir. 1998) (noting “motions under Rule 60(b)
are directed to the sound discretion of the district court”).
Decker presented new “evidence” including: the University’s
24
Amendment and Texas Whistleblower Act claims are not barred by
their respective limitations periods, alternative grounds exist for
their dismissal. Similarly, no genuine issue of material fact
exists with respect to the district court’s determination that the
affirmative defense of privilege shields Olivares’s allegedly
defamatory memorandum and the district court thus did not err in
dismissing Decker’s defamation claim. Furthermore, the district
court correctly determined that there is no merit to Decker’s claim
for intentional infliction of emotional distress or his due process
claims. Finally, Decker’s ADA claim was properly dismissed. We
need not decide at this juncture whether Title II of the ADA
recognizes a claim for employment discrimination or, if it does,
whether a plaintiff must first exhaust his administrative remedies
before bringing a suit for disability discrimination in an
employment context under Title II. The summary judgment evidence
fails to establish that Decker suffered an adverse employment
action cognizable under the ADA and his claim fails for that
reason.
September 1997 response to the Commission on Colleges inquiries
regarding the existence of paper courses; quotes of top University
administrators that appeared in local newspapers in late 1997 also
concerning that same subject; and a letter wherein defendants’
counsel allegedly admitted that Decker was disabled. Having
reviewed the proffered evidence, we are convinced that it works no
consequence on our decision today.
25
For the foregoing reasons, the judgment of the district court
is
A F F I R M E D.
26