James Wetherbe v. Bob Smith, et al

Filing

UNPUBLISHED OPINION FILED. [13-11162 Reversed, Rendered, Remanded] Judge: JES , Judge: RHB , Judge: CH Mandate pull date is 12/15/2014 [13-11162]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-11162

United States Court of Appeals
Fifth Circuit

FILED
November 24, 2014
Lyle W. Cayce
Clerk

JAMES C. WETHERBE, PH.D,
Plaintiff–Appellee,
versus
BOB SMITH, PH.D., Individually and in His Official Capacity;
LAWRENCE SCHOVANEC, PH.D.,
Individually and in His Official Capacity,

Defendants−Appellants.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:12-CV-218

Before SMITH, BARKSDALE, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
James Wetherbe, a professor at Texas Tech University (“Texas Tech”),
sued Bob Smith, the former provost, under 42 U.S.C. § 1983 for allegedly
retaliating against Wetherbe for his views on tenure. The district court denied
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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Smith’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim and on the ground of qualified immunity (“QI”).
Because Wetherbe fails to state a claim and therefore does not satisfy the first
prong of QI, we reverse and render a judgment of dismissal on the First
Amendment-retaliation claim and remand for proceedings as needed.
I.
Wetherbe has been a professor at Texas Tech since 2000 and before then
was a professor at other institutions for twenty-seven years. When he was a
professor at the University of Minnesota twenty or so years ago, he resigned
tenure and has continued to decline offers of tenure, thinking that tenure is
damaging to the educational system and that foregoing tenure gives him credibility in the business world. He has been outspoken on his views about the
alleged evils of tenure for at least two decades.
In August 2011, the dean of Texas Tech’s Rawls College of Business
announced his plan to retire. The outgoing dean had not had tenure, and the
announcement did not specify that tenure was required for the deanship.
Smith, then the provost, put Wetherbe on the search committee for the new
dean, but Wetherbe resigned from the committee so that he could pursue the
position himself.
At that time, Wetherbe was nominated for the Horn Professorship, a
prestigious position that comes with certain financial advantages. The Horn
Committee approved the nomination and scheduled it for the March 2012
meeting of the Board of Regents, but at the request of the President’s Office
the item was pulled from the agenda in February. At Smith’s behest, the Committee conducted a new vote on Wetherbe in a meeting at which Smith changed
his vote; the nomination still was approved.
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Wetherbe was in an interview group for the deanship in March 2012.
A new question had been added to the set of inquiries for the candidates asking
whether each applicant had tenure. Smith admitted that the question was
added because he had found out only during the dean-application process that
Wetherbe was not tenured. Wetherbe shared his views on tenure with the
search committee at the off-site interview, at which Smith was present.
The committee listed Wetherbe as one of its four top recommendations
for an on-campus interview, but Smith decided to interview only the other
three top candidates. When one of them withdrew, Smith selected another
candidate who had been recommended lower by the search committee; that
person was ultimately selected to be the dean. Smith would later testify that
he had not designated Wetherbe for an interview because he thought the offsite interview had gone poorly, he did not like the fact that Wetherbe had no
tenure, and he did not agree with “some of [Wetherbe’s] philosophies on being
a leader.”
In a meeting with Dean McInnes at the end of March 2012, Wetherbe
learned that Smith considered him ineligible for the Horn Professorship
because he did not have tenure. Smith met with Wetherbe and said that he
was not actually eligible to be a professor at all because he was not tenured.
Wetherbe asked about his application for the Horn Professorship in May, in
response to which Smith reiterated that he was not eligible for it.
At a grievance hearing in July 2012, Smith confirmed that he considered
a person who was neither tenured nor tenure-track not to be a professor. In
August, Smith gave a deposition in another case in which Wetherbe was a
party, stating that he did not think an untenured faculty member should be a
professor, let alone a Horn Professor. When asked how he came to know of
Wetherbe’s opinion on tenure, Smith first said that it came out “in his application” and “in his off-campus interview.” Wetherbe does not dispute that
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Smith became aware of his views on tenure during the application process for
the Horn Professorship. In his deposition, Smith confirmed that he thought
Wetherbe’s “views on tenure” made him unfit to be a Horn Professor and dean.
In May 2013, the new dean of the business school circulated a revised
organizational chart; one change was to eliminate the position of Associate
Dean for Outreach, which was held by Wetherbe. That did not mean that
Wetherbe lost his teaching job, but he contends that his teaching position was
still in danger as a result of the earlier statements by Smith that Wetherbe’s
appointment to a professorship without tenure was a mistake.
II.
Wetherbe sued. The only party who remains relevant to this appeal is
Smith, who Wetherbe alleges retaliated against him in violation of the First
Amendment for his speech about tenure, specifically in impeding his candidacy
for the Horn Professorship and the deanship and for removing the associate
dean position that Wetherbe had held.
Smith moved to dismiss for failure to state a claim and for QI. The district court denied the motion, holding that Wetherbe had adequately pleaded
a case of First Amendment retaliation and that Smith was not entitled to QI
because the allegations showed that he had violated Wetherbe’s clearly established right not to “suffer an adverse employment decision for engaging in protected speech.”
III.
We have jurisdiction because a denial of a motion to dismiss that is predicated on a defense of QI is a collateral order that is immediately reviewable.
Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 193–94 (5th Cir. 2009). We review
the denial of a motion to dismiss de novo, Atteberry v. Nocona Gen. Hosp., 430
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F.3d 245, 252 (5th Cir. 2005), accepting all well-pleaded facts in the complaint
as true. Id.
The parties dispute the correct pleading standard. Smith asserts that,
because he could raise QI as a defense, the complaint needed to include additional factual pleading to show why the plaintiff could overcome QI. Wetherbe
contends that the pleading standard is the same one that applies in most other
cases, requiring only a short and plain statement of the facts that states a
plausible claim for relief. 1 Where a defendant can claim QI, the plaintiff must
include additional material in his pleadings. 2 The Supreme Court, however,
has repeatedly reversed decisions that apply some form of heightened pleading, 3 although it has expressly reserved the question whether the burden of
pleading can be higher where the defendant could claim QI. 4
We need not resolve that debate here. To overcome QI at the motion-todismiss stage, the plaintiff must allege facts that “make out a violation of a
constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). Wetherbe
has failed to allege facts necessary to state a case for First Amendment retaliation. Because he has not satisfied the requirement that he plead a violation
of a constitutional right, we do not decide whether or how the second prong of
QI changes his pleading obligations. 5

1

See FED. R. CIV. P. 8(a)(1); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

See, e.g., Brown v. Glossip, 878 F.2d 871, 873–74 (5th Cir. 1989); Jackson v. City of
Beaumont Police Dep’t, 958 F.2d 616, 620 (5th Cir. 1992).
2

See, e.g., Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 347 (2014); Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 515 (2002).
3

See, e.g., Leatherman v. Tarrant Cnty. Narcotics Intel. & Coord. Unit, 507 U.S. 163,
166–67 (1993).
4

Under the second prong of QI, a defendant is entitled to QI if his conduct was not
objectively unreasonable in light of “clearly established” law at the time of the conduct. Callahan, 555 U.S. at 232, 244.
5

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IV.
Parts of Wetherbe’s complaint and brief focus on his lack of tenure as a
motivation for Smith’s alleged adverse actions. To the extent that Wetherbe
alleges retaliation for his lack of tenure, he fails to state a claim. Under Garcetti v. Ceballos, 547 U.S. 410 (2006), a threshold inquiry for a First
Amendment-retaliation claim is whether the employee was speaking as a citizen on a matter of public concern. If not, he cannot state a claim for First
Amendment retaliation. See id. at 418. He is speaking as a citizen where the
speech is “the kind of activity engaged in by citizens who do not work for the
government,” but “activities undertaken in the course of performing one’s job”
are not protected. Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th
Cir. 2007).
Even if we accept that Wetherbe’s decision not to have tenure is expressive conduct that contains some speech element, his tenure status is a condition of employment that is inextricably entwined with his role as an employee.
He is no more protected from adverse action for his tenure status than a plaintiff would be for refusing to attend training or complete peer evaluations.
We reached a similar conclusion in Communications Workers of America
v. Ector County Hospital District, 467 F.3d 427 (5th Cir. 2006) (en banc). In
holding that the government employer’s uniform non-adornment policy for
employees did not constitute First Amendment retaliation even where it penalized wearing pro-union pins, we stated that an employee is not speaking as
a private citizen on a matter of public concern when the speech aspect of the
conduct is only incidental to his performance of his job duties. See id. at 438–
39. Although that case dealt with uniform adornments that were visible during the health workers’ on-the-clock job performance, the rationale is instructive: A government employee cannot claim the protection of the First Amendment to set his own job conditions. The Court said as much in Garcetti:
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“Restricting speech that owes its existence to a public employee’s professional
responsibilities does not infringe any liberties the employee might have
enjoyed as a private citizen.” 6
V.
Wetherbe alleges that Smith retaliated against him for his views and
speech on tenure. It is not enough for Wetherbe to aver that Smith acted
against him because of Wetherbe’s views on tenure. A First Amendmentretaliation claim requires that the defendant retaliated in response to some
protected speech. There is no freestanding First Amendment prohibition on
taking action against a public employee for his beliefs; such a claim must be
made to fit within a particular prohibition, such as retaliation under Garcetti
or political discrimination under Branti v. Finkel, 445 U.S. 507 (1980), and
Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). Wetherbe has elected
to claim retaliation, and so he must make a short and plain statement of facts
that, accepted as true, plausibly alleges First Amendment retaliation.
Wetherbe identifies instances of speech that can be grouped into two categories. The first includes his public speeches and consulting work covering
the issue of tenure over the past twenty years. The second is his speech while
applying to be dean and a Horn Professor.
The first category does not provide a basis for relief because Wetherbe
has not alleged that Smith was aware of this speech or that it motivated his
actions. Because these are requirements of Wetherbe’s claim for First Amendment retaliation, this deficiency means that Wetherbe’s claim fails to
defeat QI. Accepting all of the factual allegations in the complaint as true,
Smith first became aware of Wetherbe’s views on tenure through Wetherbe’s

6

Garcetti, 547 U.S. at 421–22; see also Commc’ns Workers, 467 F.3d at 439.

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application to be a Horn Professor. The only indication in the complaint that
Smith was aware of Wetherbe’s outside activities was an excerpt from Smith’s
deposition in which he stated that he knew Wetherbe used his non-tenure
status to bolster his credibility when consulting. That testimony took place in
August 2012, after Wetherbe had already been denied the Horn Professor and
dean positions and had filed grievances against Smith for both decisions.
There is nothing in the complaint that alleges Smith was aware of any
of Wetherbe’s outside speech when Smith allegedly wronged Wetherbe, not
even a bare allegation of knowledge; in regard to Smith’s knowledge of Wetherbe’s views, the complaint even says that “clearly it came out during the course
of looking at him as a potential candidate to be a Horn Professor.” Likewise,
Wetherbe does not claim that Smith retaliated against him for those outside
speaking activities. The complaint alleges that Smith acted against Wetherbe
because of his views on tenure, but a First Amendment-retaliation claim must
be based on retaliation against First Amendment-protected activity. The second category―Wetherbe’s speech to Smith and other university agents while
he was applying for these positions―does not provide a ground for a retaliation
claim because Wetherbe was not speaking as a private citizen on a matter of
public concern. Because this prevents Wetherbe from having a claim for First
Amendment retaliation regarding this speech, QI likewise bars his claim here.
The core principle of Garcetti is that “[r]estricting speech that owes its
existence to a public employee’s professional responsibilities does not infringe
any liberties the employee might have enjoyed as a private citizen.” Garcetti,
547 U.S. at 421–22. Though a First Amendment-retaliation claim can attach
even where he speaks only to other government employees, an employee generally does not have First Amendment protection for communications that
“relate to his own job function up the chain of command . . . .” Davis v.
McKinney, 518 F.3d 304, 313 n.3 (5th Cir. 2008).
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The speech in this case most closely resembles such a circumstance.
Wetherbe’s speech about tenure during interviews and other applicationrelated conversations consisted of communications to the individuals responsible for screening and hiring candidates, and his comments were related to an
issue of central importance to the operation of the university in which he
sought a position of prominence. This is a situation in which the speech plainly
owes its existence to the government, whose purpose in conducting interviews
is for the applicant to speak to the government, answer its questions, and make
statements in an effort to get hired. 7
Treating speech during interviews categorically as private-citizen speech
under Garcetti would create an unworkable system for government employers.
Interviews necessarily involve discussions that touch on matters that―when
addressed in the public sphere―might count as issues of public concern. Especially when evaluating an applicant for a high-responsibility leadership position, an employer will want to ask about his leadership philosophy, his opinion
on issues that are central to the operation and mission of the institution, and
other concerns that will allow the interviewers to gauge whether the applicant
will be an effective employee. Nothing in First Amendment jurisprudence
suggests that a government employer is so restricted relative to a private
employer that the government cannot screen applicants to ensure that they
actually will perform their duties with maximal diligence. 8

In addition, the purely self-serving nature of statements made during job interviews
cautions strongly against considering the applicant’s statements to be on matters of public
concern. See Foley v. Univ. of Houston Sys., 355 F.3d 333, 341 (5th Cir. 2003) (“Speech that
is primarily motivated by, or primarily addresses, the employee’s own employment status
rather than a matter of public concern does not give rise to a cause of action under § 1983.”).
7

8

We need not answer today whether and to what degree the questioning must be
related to the position that the applicant is seeking; the facts of this case would satisfy even
an exacting standard. And nothing here speaks to the standard for how a government
employer must treat an applicant’s speech that occurred outside of the interviewing context.

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VI.
The only remaining claim is the alleged violation of Article I, Section 8
of the Texas Constitution. The Texas Constitution’s free-speech protections
can be more extensive than the First Amendment’s protections, but the Texas
courts will assume the protections are identical if the litigant does not show
why they are different. 9 This is the same approach we applied in Finch v. Fort
Bend Independent School District, 333 F.3d 555, 563 n.4 (5th Cir. 2003), in
which the parties disagreed about whether the state constitution is more protective of speech than is the First Amendment.
The district court did not clearly state the ground on which it denied
Smith’s motion respecting the state-law claim. Smith’s motion to dismiss that
gave rise to this appeal specifically mentions the state-law claim only when it
asserts that Wetherbe failed to state a claim, omitting any reference to the
state claims in its QI analysis. And Smith’s briefs make no mention of the
district court’s decision on the state-law claim. The only conclusion we can
draw is that this appeal does not reach the decision not to dismiss the freespeech claims under the Texas Constitution.
The order denying the motion to dismiss the First Amendmentretaliation claim is REVERSED, and a judgment of dismissal for failure to
state a claim is RENDERED on that issue. We express no opinion on the
decision not to dismiss the state-law free-speech claim.

This matter is

REMANDED for further proceedings as needed.

See Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 455 n.5 (Tex. 2008); Tex.
Dept. of Transp. v. Barber, 111 S.W.3d 86, 105–06 (Tex. 2003).
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