Wetherbe v. Texas Tech University System, 060117 FED5, 16-10458

Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
Judge Panel:Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
Opinion Judge:PER CURIAM:
Party Name:JAMES C. WETHERBE, PH.D., Plaintiff - Appellant v. TEXAS TECH UNIVERSITY SYSTEM; LANCE NAIL, PH.D., in his individual capacity only; DR. PAUL GOEBEL, in his official capacity only, Defendants - Appellees
Case Date:June 01, 2017
Docket Nº:16-10458
 
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JAMES C. WETHERBE, PH.D., Plaintiff - Appellant

v.

TEXAS TECH UNIVERSITY SYSTEM; LANCE NAIL, PH.D., in his individual capacity only; DR. PAUL GOEBEL, in his official capacity only, Defendants - Appellees

No. 16-10458

United States Court of Appeals, Fifth Circuit

June 1, 2017

         Appeal from the United States District Court for the Northern District of Texas USDC No. 5:15-CV-119

          Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.

          PER CURIAM: [*]

         James Wetherbe is a university professor suing his employer, Texas Tech University, and the current and former deans of the business school where he teaches. Wetherbe claims that the University and the deans have violated the First Amendment by retaliating against him for publicly criticizing tenure in the academy. The district court granted Defendants' motion to dismiss, holding that tenure is not a matter of public concern and that Wetherbe's speech on the subject was thus not protected by the First Amendment. We REVERSE the district court's dismissal in part because Wetherbe's public comments on tenure were those of private citizen on a matter of public concern and AFFIRM in part because Wetherbe concedes that some of the claims and issues presented in his complaint are barred by res judicata, collateral estoppel, and sovereign immunity.

         I

         In 2012, James Wetherbe filed a First Amendment suit against Bob Smith, Texas Tech University's (TTU) provost, and Lawrence Schovanec, TTU's president (collectively, the Previous Defendants), alleging that he suffered adverse employment actions due to his views on tenure. Wetherbe, a business professor at TTU's Rawls College of Business who has been an "outspoken critic of tenure at universities for over 20 years, " and who had previously refused to accept tenure at TTU, alleged that the Previous Defendants violated the First Amendment by refusing to consider him for the deanship of Rawls or for a Horn Professorship, a prestigious position at TTU, because he did not have tenure, because he held anti-tenure views, because of his public speeches and consulting work, and because he was critical of tenure in his interviews for those positions. The district court denied the Previous Defendants' motion to dismiss, but this court reversed and rendered judgment in their favor, holding that the First Amendment did not protect Wetherbe's decision to reject tenure or his personal views on tenure, that Wetherbe failed to allege that the defendants were aware of his public speech, and that comments made in the course of an employment interview were not those of a private citizen on a matter of public concern. See Wetherbe v. Smith, 593 F.App'x 323, 327-29 (5th Cir. 2014).

         In 2015, Wetherbe filed this suit against Dr. Lance Nail ("Dean Nail"), the former Dean of the Rawls College of Business, and against TTU (collectively with the new Dean of the Rawls College of Business, Paul Goebel, "Defendants"), claiming that a number of new adverse employment events were motivated by his first lawsuit and by his anti-tenure publications. The district court granted Defendants' motion to dismiss for failure to state a claim. Specifically, the court found that Wetherbe's speech did not involve a matter of public concern because "[t]enure is a benefit that owes its existence to, and is generally found only in the context of, government employment." The court also found that Wetherbe had failed to state a claim for relief based on his theory that Defendants retaliated against him for filing his first lawsuit, and granted Defendants' motion to dismiss in full.

         Wetherbe timely appealed. On appeal, he challenges only the portion of the opinion dismissing his public-speech-retaliation claim, abandoning his lawsuit-retaliation claim.

         II

         "This court reviews a district court's grant of a motion to dismiss de novo." Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013). The plaintiff's well-pleaded facts are to be accepted as true and viewed in the light most favorable to him. Id. A claim is properly dismissed when the facts alleged do not state a claim that is plausible on its face. Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Gearlds v. Entergy Servs., Inc., 709 F.3d 448, 450 (5th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         III

         We first address the district court's basis for dismissal, then turn to the Defendants' proposed...

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