Decker v. Univ of Houston

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)
_________________________________________________________________

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,

*
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this opinion should not be published and is not precedent except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.
(2) his defamation claim on the basis of qualified privilege, and

(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

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
a brief respite between lectures. The defendants2 were made aware

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

2
The defendants include the University of Houston; Dr.
Claudine Giacchetti, the administration’s appointee to the Faculty
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
Giacchetti. In addition, the defendants assigned Decker

consecutive courses to teach despite his requests for reasonable

scheduling adjustments. The subsequent workload (and an internally

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

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
 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

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.

5
§ 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.

§ 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

6
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.

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

7
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.”

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

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
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

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

9
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

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

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
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

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

11
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

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.

12
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.

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

13
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

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

14
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).

15
 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

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).

16
trial); Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 314 (5th

Cir. 1995). Therefore, to avoid summary judgment, Decker has the

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.

17
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.

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.

18
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

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

19
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

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

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).

20
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

(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

21
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

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.

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.

22
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"

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.

23
 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.

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.

24
 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

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

25
claims.15 Without reaching Decker’s argument that his First

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

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
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.

26
fails to establish that Decker suffered an adverse employment

action cognizable under the ADA and his claim fails for that

reason.

For the foregoing reasons, the judgment of the district court

is

A F F I R M E D.

27