UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-20228
NAWARUT CHARUPATANAPONG, also known as Nancy Lee Lim,
Plaintiff-Appellee,
VERSUS
UNIVERSITY OF HOUSTON; ET AL
Defendants,
MUSTAFA F. LOKHANDWALA; MARK A. STRATTON; BHAGAVAN JANDHYALA,
Defendants-Appellants.
Appeal from the United States District Court
For the Southern District of Texas
(H-99-CV-2858)
May 15, 2002
Before DUHÉ, WIENER and BARKSDALE, Circuit Judges.
PER CURIAM:*
Mustafa F. Lokhandwala (“Lokhandwala”), Mark A. Stratton
(“Stratton”), and Bhagavan Jandhyala (“Jandhyala”) (collectively,
“Appellants”) appeal the district court’s denial of summary
judgment based on their qualified immunity defense. Because the
genuine issues of fact that exist are material to whether
*
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opinion should not be published and is not precedent except under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.
Appellants’ actions in denying tenure were objectively reasonable,
relevant to step two of the qualified immunity test, we affirm the
judgment of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
In 1993, the University of Houston (“the University”) hired
Nawarut Charupatanapong (“Appellee”),1 an Asian female, as an
assistant professor in its College of Pharmacy (“COP”). Appellee
applied for and was denied tenure three times. Only her 1998
application is at issue here.
The tenure process in the COP is multi-tiered, and reviews at
every level are considered in the final decision. First, the
department chair recommends for or against tenure. Then, the
College Promotion and Tenure Committee (“College Committee”),
composed of COP faculty, reviews the case and makes a
recommendation. Next, the Dean of the COP makes a recommendation,
followed by a University-wide Promotion and Tenure Committee
(“University Committee”), composed of faculty drawn from the
University as a whole. After considering all of these evaluations,
the Provost of the University (“Provost”) makes a recommendation to
the President of the University, who ultimately makes the tenure
decision.
When evaluating a candidate for tenure, reviewers at the
University consider three categories of performance - research and
1
In the depositions and documents presented to the courts,
Appellee is also referred to as Nancy Lee Lim or Nancy Lee.
2
scholarship, including the volume and quality of a candidate’s
work, research proposals, and secured funding; teaching; and
service.
Stratton, the chair of Appellee’s department, conducted
Appellant’s first performance review in 1994, and noted his concern
about the lack of focus in her scholarship. Appellee claims that
thereafter Stratton discriminated against her in work assignments
and grant opportunities. In July 1995, she complained of this to
Stratton, and he told her if she was unhappy, she should find a job
elsewhere.2 She later complained to Lokhandwala (the Dean of the
College), and filed a complaint with the University’s Affirmative
Action Office (“AAO”). In March 1997, Appellee filed a complaint
with the Equal Employment Opportunity Commission (“EEOC”), and the
next month she filed a complaint with the University Grievance
Committee (“UGC”).
When Appellee was considered for tenure in 1998, Stratton, the
College Committee, and Lokhandwala all recommended against tenure.
The University Committee voted in favor of tenure. Finally, the
Provost recommended against tenure and Appellee was denied tenure.
Appellee was terminated in 1999 as a result of being denied
tenure. She filed a second EEOC charge based on her 1998 denial of
2
This fact is disputed; however, in the context of this appeal
we assume it to be true. In reviewing a denial of summary judgment
on the basis of qualified immunity, the facts assumed by the
district court are taken as true and are viewed in a light most
favorable to the Appellee. See Coleman v. Houston Indep. Sch.
Dist., 113 F.3d 528, 531-32 (5th Cir. 1997).
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tenure, and sued the University and individual defendants alleging
race-based and gender-based discrimination and retaliation,
actionable under Title VII and 42 U.S.C. §§ 1981, 1983, 1985, and
2000. At the close of discovery, Appellants filed a Motion for
Summary Judgment on the basis of qualified immunity. The district
court denied that motion, and appellants timely filed their appeal.
STANDARD OF REVIEW
This court reviews the district court’s denial of a motion for
summary judgment based on qualified immunity de novo. See Lukan v.
North Forest Indep. Sch. Dist., 183 F.3d 342, 345 (5th Cir. 1999).
The facts assumed by the district court are taken as true and are
viewed in a light most favorable to the Appellee. See Coleman v.
Houston Indep. Sch. Dist., 113 F.3d 528, 531-32 (5th Cir. 1997).
DISCUSSION
The district court granted and denied summary judgment to the
defendants in this case on a multitude of grounds. See Nancy Lee
Lim v. University of Houston, et al, No. H-99-2858, slip op. (S.D.
Tex. Feb. 21, 2001). All that is appealed is the denial of summary
judgment based on qualified immunity.
Jurisdiction
Ordinarily there is no appellate jurisdiction to review
immediately the denial of a motion for summary judgment. However,
“[u]nder the collateral order doctrine, a small class of
interlocutory orders that (1) conclusively determine, (2) important
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issues, which are separate from the merits of the action, and (3)
which would be effectively unreviewable on appeal from a final
judgment, are deemed ‘final’ for purposes of appeal.” Cantu v.
Rocha, 77 F.3d 795, 802 (5th Cir. 1996).
“District court orders denying summary judgment on the basis
of qualified immunity are immediately appealable under the
collateral order doctrine, notwithstanding their interlocutory
character, when based on a conclusion of law.” Coleman, 113 F.3d at
531. When a district court denies summary judgment because genuine
issues of material fact exist, as was done here, it makes two
distinct conclusions – that there are “genuine” issues of fact in
dispute, and that those issues are “material”. This court may not
review a factual conclusion that issues of fact are genuine, see
Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.
2d 773 (1996), but we can review a district court’s legal
conclusion that an issue of fact is material. See Bazan v. Hidalgo
County, 246 F.3d 481. 490 (5th Cir. 2001). A fact is “material” if
it “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed. 2d 202 (1986). Thus we have jurisdiction to determine
whether the genuine issues of fact the district court found may
affect the outcome of the suit.
Qualified Immunity Test
In determining whether a public official is entitled to
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qualified immunity, this court applies a two-step analysis. First,
we “determine whether [Appellee] charge[d] conduct violating
clearly established federal rights.” Chrissy F. by Medley v.
Mississippi Dep’t of Public Welfare, 925 F.2d 844, 851 (5th Cir.
1991). Second, we must determine whether Appellants’ “conduct was
objectively reasonable in light of clearly established law at the
time that the challenged conduct occurred.” Glenn v. Tyler, 242
F.3d 307, 312 (5th Cir. 2001).
Clearly Established Right
We are first faced with the question whether the genuine
issues of fact found by the district court are material to whether
the Appellee has alleged the violation of a clearly established
federal right. See Foster v. City of Jackson, 28 F.3d 425, 429 (5th
Cir. 1994).
The district court found no genuine issue of fact regarding
this first step of the analysis. It found that “[Appellants] do not
dispute that denial of tenure because of [Appellee’s] race or
gender, or in retaliation for complaining of discrimination,
violates rights that were ‘clearly established’ during the relevant
period.” Lim, No. H-99-2858, slip op. at 22. We have no
jurisdiction to review that factual conclusion. Thus, we turn to
the second step, whether the genuine issues of fact found by the
district court are material to whether Appellants’ actions were
objectively reasonable in light of clearly established law.
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Objective Reasonableness
The second prong of the qualified immunity test is whether
Appellants’ actions were objectively reasonable in light of clearly
established law. See Anderson v. Creighton, 483 U.S. 635, 639, 107
S.Ct. 3034 (1987). Our inquiry is whether the genuine issues of
fact are material to whether a reasonable decision-maker could have
believed he was violating a person’s federally protected rights
under the circumstances. See id. at 641.
Appellants argue that reasonable professors could have
disagreed on whether to vote for or against tenure. They put forth
as evidence the fact that the College Committee recommended against
tenure, and it is not alleged that every member of that committee
was driven by discriminatory animus, nor is it alleged that every
member of the College Committee was retaliating against Appellee.
Appellee responds with evidence suggesting that those committee
members, while not themselves acting with discriminatory or
retaliatory animus, were influenced by Appellants, and thus cannot
be considered “reasonable” decision-makers for purposes of this
inquiry. This creates a genuine issue of fact. On review, we find
that issue of fact material to the question of objective
reasonableness with respect to both alleged violations.
CONCLUSION
Because the genuine issues of fact found by the district court
are material to whether Appellants acted objectively reasonably in
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denying Appellee tenure, we AFFIRM the district court’s denial of
summary judgment and REMAND for further proceedings.
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