Foley v. University of Houston System

• Decision Date: 18 December 2003
• Docket Number: No. 01-41485.,01-41485.
• Citation: 355 F.3d 333
• Parties: Roy FOLEY, etc.; et al., Plaintiffs, Roy Foley, Doctor; and Nora Hutto, Doctor, Plaintiffs-Appellees, v. UNIVERSITY OF HOUSTON SYSTEM; et al., Defendants, Cheryl Hines, Individually and in her official capacity as Chair of the Division of Education at University of Houston Victoria; Diane Prince, Individually and in her official capacity as Dean/Chair of the Division of Education at University of Houston Victoria; Paul Carlson, Individually and in his official capacity as Professor in the Division of Education at University of Houston Victoria; Karen Haynes, Individually and in her official capacity as President of University of Houston Victoria; and Don Smith, Individually and in his official capacity as Provost of University of Houston Victoria, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

355 F.3d 333

Roy FOLEY, etc.; et al., Plaintiffs Roy Foley, Doctor; and Nora Hutto, Doctor, Plaintiffs-Appellees, v. UNIVERSITY OF HOUSTON SYSTEM; et al., Defendants Cheryl Hines, Individually and in her official capacity as Chair of the Division of Education at University of Houston Victoria; Diane Prince, Individually and in her official capacity as Dean/Chair of the Division of Education at University of Houston Victoria; Paul Carlson, Individually and in his official capacity as Professor in the Division of Education at University of Houston Victoria; Karen Haynes, Individually and in her official capacity as President of University of Houston Victoria; and Don Smith, Individually and in his official capacity as Provost of University of Houston Victoria, Defendants-Appellants.

No. 01-41485.

United States Court of Appeals, Fifth Circuit.

December 18, 2003.

COPYRIGHT MATERIAL OMITTED

Walter J. Kronzer, III (argued), Houston, TX, Laurence W. Watts, Watts & Associates, Missouri City, TX, for Plaintiffs-Appellees.

Lydia Kimble-Wright (argued), Austin, TX, for Defendants-Appellants.

Appeal from the United States District Court for the Southern District of Texas.

Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and HUDSPETH^*, District Judge.

HUDSPETH, District Judge:

This Court's opinion, 324 F.3d 310 (5th Cir.2003), is hereby withdrawn, and the following opinion is substituted.

In this interlocutory appeal, the Appellants request reversal of a district court decision rejecting their claims to qualified immunity. In reaching a decision, we are required to determine the availability of a retaliation cause of action under 42 U.S.C. § 1981,the applicability of the defense of qualified immunity to such a claim, and whether the Appellees are entitled to that defense under the facts as determined by the district court. In the case of one Appellee, Dr. Nora Hutto, we are also required to determine whether her 42 U.S.C. § 1983 claim alleging violation of her First Amendment rights can survive a defense of qualified immunity.

I. FACTS

Appellees Dr. Roy Foley and Dr. Nora Hutto are tenured members of the faculty of the School of Education¹ at the University of Houston Victoria. Dr. Foley is black and Dr. Hutto is white. Dr. Foley began his career at the University of Houston Victoria ("UHV") in 1989 as an assistant professor in the Education Division. In 1993, he was appointed Chair of the Division. In 1994, after a vote of the faculty, he was removed as Chair and succeeded by Dr. Diane Prince, one of the Defendant-Appellants. He timely filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), claiming racial discrimination in his removal as Chair. The charge of discrimination was settled, one of the terms of the settlement being that Dr. Prince step down as Chair of the Division. In 1995, Dr. Foley was awarded tenure and promoted to associate professor. In 1997, 1998, and 1999, he applied for promotion to full professor, but was not promoted. In 1997 and 1999, he filed additional charges of discrimination² with the EEOC, contending that these failures to promote were motivated by race discrimination and were in retaliation for his previous EEOC charge of discrimination. The response of UHV was that it had a policy not to promote an associate professor to the rank of full professor until he or she had served six years at the associate professor level. Dr. Foley countered by claiming this was pretext, and that race and retaliation were the real reasons for his non-promotion.³

Dr. Nora Hutto was appointed Chair of the Education Division in February 1995, succeeding Dr. Prince. According to Dr. Hutto, she became aware of the existence of a clique within the Education Division led by Dr. Prince. Dr. Hutto became convinced that Dr. Prince and her co-conspirators (allegedly including Dr. Hines and Dr. Carlson) were "out to get" Dr. Foley; they not only opposed his promotion, but also schemed to bring about his termination. Dr. Hutto supported Dr. Foley, believing that he was being treated unfairly. She blames Dr. Prince and her faction for causing her own removal as Chair of the Division in August 1996. In July 1999, she filed a charge of discrimination with the EEOC, alleging that she had been removed as Chair in retaliation for her support of Dr. Foley.⁴

On August 13, 1999, Drs. Foley and Hutto filed this suit. They named as Defendants the University of Houston System; University of Houston Victoria; the President of UHV (Dr. Karen Haynes); the Provost of UHV (Dr. Don Smith); and three individual professors in the Division of Education: the aforementioned Dr. Prince, Dr. Hines, and Dr. Carlson. The complaint alleged causes of action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"); 42 U.S.C. § 1981 ("§ 1981"); 42 U.S.C. § 1983 ("§ 1983"), and for intentional infliction of emotional distress under Texas common law. All Defendants moved for summary judgment. The district court granted the Defendants' motions for summary judgment with respect to Dr. Hutto's Title VII and intentional infliction of emotional distress claims and Dr. Foley's Title VII and § 1981 claims of race discrimination, his § 1983 First Amendment claim, and his intentional infliction of emotional distress claim, as well as his remaining claims against Drs. Hines, Haynes, and Smith. However, the district court rejected the defense of qualified immunity with respect to the claims that remain. The surviving claims include Dr. Foley's claim of § 1981 retaliation against Dr. Prince and Dr. Carlson⁵ and Dr. Hutto's claims of § 1981 retaliation and § 1983 deprivation of First Amendment rights against all five individual Defendants. Insisting that they are entitled to the defense of qualified immunity with respect to all those claims, the individual Defendants bring this interlocutory appeal.

II. APPELLATE JURISDICTION

A district court order denying a motion for summary judgment based on qualified immunity, although interlocutory in nature, is immediately appealable if it is based on a conclusion of law. Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 340 (5th Cir.2001); Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 531 (5th Cir.1997). In the instant case, the district court found the existence of a genuine issue of material fact precluded summary judgment on the basis of qualified immunity with respect to those claims at issue in this appeal. The district court's determination that fact issues are genuine is not appealable. However, his determination that those fact issues are material, that is, that resolution of them might affect the outcome of the case under governing law, is appealable, and is before us today. Chiu, 260 F.3d at 341; Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir.2000); Colston v. Barnhart ("Colston II"), 146 F.3d 282, 284 (5th Cir.1998).

III. STANDARD OF REVIEW

This Court reviews de novo the district court's denial of a motion for summary judgment based on a claim of qualified immunity. Chiu, 260 F.3d at 342; Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir.2000).

IV. DISCUSSION

A. QUALIFIED IMMUNITY

In addressing the claim of a public official to qualified immunity, we engage in a two-step analysis. First, we must determine whether the plaintiff has made a sufficient showing that the official violated a clearly established constitutional or statutory right. If the answer is in the affirmative, we then ask whether the official's actions were objectively reasonable in light of the clearly established right. Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991).

The Appellants contend that their motion for summary judgment based on qualified immunity should have been granted by the district court. Qualified immunity attaches only to officials in their individual, not their official, capacities. Harvey v. Blake, 913 F.2d 226, 228 (5th Cir.1990). Of course, the issue of qualified immunity arises only if the individual official is subject to liability in the first place, and § 1981 liability does not necessarily run to all individual defendants. We recently noted in Felton v. Polles, 315 F.3d 470 (5th Cir.2002), that it has not yet been decided "whether a § 1981 claim lies against an individual defendant not a party to the contract giving rise to a claim." Id. at 480. We have, however, accepted that § 1981 liability will lie against an individual defendant if that individual is "`essentially the same' as the State for the purposes of the complained-of conduct." Id. at 481 (quoting Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir.1997)). In the instant case, the district court found genuine issues of material fact as to whether the Appellants exercised control over the faculty positions and titles held by Dr. Foley and Dr. Hutto. If so, the Appellants were "essentially the same" as UHV for purposes of the retaliatory conduct alleged in this case. See Al-Khazraji v. St Francis College, 784 F.2d 505, 518 (3d Cir.1986)(holding that plaintiff could bring a § 1981 claim against individual members of a tenure committee if those individuals were personally involved in the discrimination action); see also, Bellows, 118 F.3d at 274 (citing Al-Khazraji with approval and interpreting Faraca v. Clements, 506 F.2d 956 (5th Cir.1975)).

We recognize that there is a tension between our decisions in Bellows (which cites Faraca) and Oden v. Oktibbeha County, Miss., 246 F.3d 458 (5th Cir.2001) (which does not cite Faraca) with respect to the liability of individual defendants who are not parties to the employment contract. However, we do not believe that this is the proper case in which to decide the outer boundaries of § 1981 liability as it applies to individual non-employer defendants,⁶ nor to attempt to catalogue every fact situation which might subject an individual to such liability.⁷ Instead, we proceed to determine...