Citation939 F. Supp. 1297
Decision Date10 September 1996
Docket NumberCivil Action No. H-95-5426.
PartiesDr. Jackson WAGNER, Plaintiff, v. TEXAS A & M UNIVERSITY, Dr. James R. West, and Dr. Elvin E. Smith, Defendants.
CourtU.S. District Court — Southern District of Texas

939 F. Supp. 1297

Dr. Jackson WAGNER, Plaintiff,
TEXAS A & M UNIVERSITY, Dr. James R. West, and Dr. Elvin E. Smith, Defendants.

Civil Action No. H-95-5426.

United States District Court, S.D. of Texas, Houston Division.

September 10, 1996.

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939 F. Supp. 1300
939 F. Supp. 1301
939 F. Supp. 1302
939 F. Supp. 1303
939 F. Supp. 1304
939 F. Supp. 1305
Travis Brewer, West, Webb, Allbritton & Gentry, Bryan, TX, for Plaintiff

Dedra L. Wilburn, Office of Texas Attorney General, Austin, TX, for Defendants.


CRONE, United States Magistrate Judge.

Pending before the court is Defendant Texas A & M University ("TAMU"), Dr. James West ("West") and Dr. Elvin E. Smith's ("Smith") (collectively, the "Defendants") Motion for Summary Judgment (# 25). The Defendants seek summary judgment on Plaintiff Dr. Jackson Wagner's ("Wagner") claims asserting discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), violations of his civil rights under 42 U.S.C. § 1983, retaliation in violation of TEX.GOV'T CODE ANN. § 554.001 (the "Texas Whistleblower Act"), negligent and intentional infliction of emotional distress, defamation, and fraudulent concealment.

Having reviewed the motion, the submissions of the parties, the pleadings, and the applicable law, this court is of the opinion that the Defendants' motion for summary judgment should be granted in part and denied in part.

I. Background

Wagner is a professor in the Department of Human Anatomy and Medical Neurobiology (the "Department") within the College of Medicine at TAMU in College Station, Texas. Wagner has been employed by TAMU since 1974 and tenured as a professor since 1976. The Department is comprised of three core subjects: Neuroanatomy, Gross Anatomy, and Microscopic Anatomy. According to Wagner, each of the subjects is a separate specialty. Wagner has focused his entire career on Neuroanatomy. Wagner acted as the Course Coordinator of Neuroanatomy at TAMU College of Medicine continuously until 1990, and then again in 1993. In addition, from 1974 to 1989, Wagner was Head of the Department at TAMU College of Medicine.

Frictions in the Department began on September 16, 1987, when Wagner, then Department Head, alleged that another professor in the Department, Dr. Michael Trulson ("Trulson"), had engaged in scientific fraud. According to Wagner, Trulson had plagiarized, falsified, and fabricated results of dozens of experiments as well as falsely represented himself to be a medical doctor. In response to Wagner's allegations, Trulson allegedly accused Wagner of homosexuality and improprieties such as drug abuse, theft, fraud, and improper use of prescription medicine. Wagner requested legal assistance from TAMU to defend himself against countercharges by Trulson, but his request was denied. Wagner contends that because Trulson was a martial arts expert, he feared violence in the office, which motivated him to carry a handgun with him to school.

TAMU designated a Board of Inquiry to assess the charges made by Wagner against Trulson. On January 8, 1988, the Board of Inquiry issued a report that found Trulson had engaged in serious academic misconduct and should be terminated. TAMU submitted the report to the National Institutes of Health ("NIH"), and it was accepted by NIH. Following the report of the Board of Inquiry, TAMU and Trulson negotiated a settlement that allowed Trulson to voluntarily resign effective May 31, 1988, and prevented TAMU from placing negative references in his personnel file. Wagner, who had hired Trulson, continued to press for broader inquiry into and disclosure of the allegations and findings of misconduct.

In 1989, Wagner stepped down as Department Head. The circumstances of his resignation are a matter of considerable debate. Wagner contends that he was forced out because of his frequent demands for greater disclosure of the "Trulson Affair." The Defendants claim that Wagner left voluntarily because he had been neglecting his Department Head duties and lacked the support of the Department. According to Wagner, Richard DeVaul ("DeVaul"), then Dean of the College of Medicine, promised Wagner $80,000 in start-up research funds as an offset

939 F. Supp. 1306
for being required to step down as Department Head. Wagner never received these funds

Wagner continued to object to TAMU's failure to pursue Trulson aggressively. As a result, officials at TAMU met with Dr. Suzanne Hadley ("Hadley") at the Office of Scientific Integrity ("OSI"), an investigative arm of the NIH, at which time TAMU and NIH jointly determined to reopen the Trulson investigation. On November 8, 1989, TAMU appointed an Investigation Committee to complete the investigation of the allegations made by Wagner. The Investigative Panel was formally charged on October 16, 1989. In March 1990, the committee issued a report (the "Norris Committee Report") which found that Trulson had committed serious academic misconduct. The Norris Committee Report recommended, among other things, that various funding and publication organizations that Trulson had worked with be notified of the findings of misconduct, that Trulson be barred from receiving NIH funds in the future, and that Trulson's personnel records at TAMU include the findings of the Panel.

In 1991, Wagner took a sabbatical. Wagner contends that when he returned from sabbatical, he was prohibited from teaching or attending the Neuroanatomy class. Wagner therefore, instructed the University Bookstore to remove from its shelves a lab manual that he had authored on the subject of Neuroanatomy, the copyright ownership of which was later disputed. Defendant Smith, the Associate Dean under DeVaul in the College of Medicine, allegedly ordered Wagner not to remove the materials, indicating that the removal would be a breach of the terms of appointment as a faculty member, i.e., grounds for termination.

On December 12, 1991, Wagner reported to the OSI that TAMU allegedly was in violation of the ethical standards designed to safeguard whistleblowers. In 1992, the Office of Research Integrity ("ORI"), the successor to the OSI, ordered TAMU to conduct an investigation into whether Wagner's claims were well-founded. On January 14, 1993, TAMU issued the "Milford Committee Report," which concluded that Wagner's reputation had been damaged because of TAMU's handling of the Trulson affair or that at least his reputation had not been protected as NIH required. The Milford Committee Report recommended that Wagner be "reintegrated" immediately and completely back into the College of Medicine. The Milford Committee Report also recommended that TAMU publish the true circumstances of the Trulson case. The ORI accepted the findings of the Milford Committee Report, and in February 1993, TAMU undertook to accomplish Wagner's reintegration into the College of Medicine. On the issues of reintegration and research funding, TAMU Associate Provost and Dean of Faculties William L. Perry ("Perry") was named the arbitrator between Wagner and the College of Medicine. Wagner contends that the arbitration process was a special "grievance procedure" established to implement the Milford Committee Report's recommendations. The ORI later found this procedure to be in compliance with federal regulation and requested that it be informed when TAMU published a report of the Trulson Affair, which would close the ORI's case file on Wagner's retaliation claims.

In 1993, Wagner again served as Course Coordinator for Neuroanatomy. In July 1993, Wagner, at the advice of his physician, requested and was granted a six-month medical leave of absence to correct certain health problems, including intermittent depression, gastrointestinal disorder, nervous and physical exhaustion, respiratory insufficiency, and lower back pain. The medical leave time was deducted from his sick leave time accumulated over the years. At the same time, Defendant West became the new Department Head.

While Wagner was on medical leave and upon his return in early 1994, Perry, the arbitrator, negotiated with Wagner. During these negotiations, on April 18, 1994, TAMU offered Wagner $225,000 after taxes, plus lifetime health insurance coverage, in exchange for his immediate retirement. According to Wagner, in reliance on good faith efforts to negotiate his retirement, TAMU and Wagner agreed to his taking a one-year faculty development leave from April 1994 to

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April 1995, during which time negotiations would continue. At the end of 1994, Defendant Smith replaced DeVaul as Interim Vice President for Health Affairs and Interim Dean of Medicine at TAMU, which placed him in a position to oversee much of the "reintegration" of Wagner into the College of Medicine. On March 1, 1995, while still on leave, Wagner wrote Perry a memorandum accepting TAMU's offer. Perry responded by a memorandum dated March 3, 1995, stating that no proposals were on the table

On April 21, 1995, West, the current Head of the Department, informed Wagner by memorandum that he would be teaching Microscopic Anatomy (also called Microanatomy) in the Spring 1996 semester rather than Neuroanatomy. Wagner had no prior experience teaching Microanatomy. According to West's memorandum, Wagner's two-year absence from Neuroanatomy had necessitated fully staffing the course, leaving no vacancy.

In June 1995, Wagner's counsel, Gaines West ("Gaines"), notified TAMU by letter that Wagner was suffering from a chronic, serious health condition that required his taking leave under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"). By this letter, Wagner also alleged that his illness constituted a disability under the ADA and that he was...

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