KOSTIC v. Texas A&M University-Commerce et al

Filing 105

ORDER ACCEPTING IN PART AND REJECTING IN PART THE FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE re: 100 Findings and Recommendations on Motion re: 61 Motion for Summary Judgment filed by Christine Evans, Texas A&M Un iversity-Commerce, Texas A&M University System, Michael D. McKinney, Larry F Lemanski, Dan R Jones, Ben W.-L. Jang, 56 Motion for Summary Judgment. The Court finds that, except with respect to Plaintiff's retaliation and defamation claim s, the Findings, Conclusions, and Recommendation of the Magistrate Judge are correct and they are accepted as the Findings, Conclusions, and Recommendation of the Court as to all claims but retaliation and defamation as to Defendant Jang only. Becaus e the Court concludes that there is a fact question as to whether or not the Plaintiff was terminated in retaliation for protected conduct, Defendants' Motion for Summary Judgment on that ground is DENIED. The Court also DENIES summary judgment on Plaintiff's defamation claim, now asserted only against Jang. (Ordered by Judge Barbara M.G. Lynn on 3/31/2013) (tla)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NENAD M. KOSTIC,
Plaintiff,
v.
TEXAS A&M UNIVERSITY AT
COMMERCE, ET AL.,
Defendants.

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No. 3:10-cv-2265-M

ORDER ACCEPTING IN PART AND REJECTING IN PART THE FINDINGS AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
After making an independent review of the pleadings, files, and records in this case, and
the Findings, Conclusions, and Recommendation of the United States Magistrate Judge dated
February 1, 2013, and the objections, responses to the objections, and reply to the objections, the
Court finds that, except with respect to Plaintiff’s retaliation and defamation claims, the
Findings, Conclusions, and Recommendation of the Magistrate Judge are correct and they are
accepted as the Findings, Conclusions, and Recommendation of the Court as to all claims but
retaliation and defamation as to Defendant Jang only.
The Recommendation is rejected as to Plaintiff’s claim of retaliation. The Court
concludes that Mato v. Baldauf, 267 F.3d 444 (5th Cir. 2001), cited by the Magistrate Judge,
remains good law in the Fifth Circuit. But both it and Staub v. Proctor Hospital, 131 S.Ct. 1186
(2011), stand for the proposition that an investigation could be tainted by the improper motive of
a subordinate.
Here, Dr. Jones was accused of retaliation. The notice of termination he sent to Plaintiff
referred to a number of prior events Plaintiff claimed to be retaliatory. Docket Entry #63-4 at

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52–53. Although an appeals committee convened and voted 12-3 to reject the appeal, and issued
a report which Chancellor McKinney reviewed, the letter from Chancellor McKinney expressly
states that he relied, at least in part, on President Jones’s recommendation that Kostic be
terminated. Id. at 175. In his deposition, Chancellor McKinney testified that he relied “heavily
on the recommendation of the president” and “[t]hat there would have to be something to make
me overrule a president’s recommendation.” Docket Entry #83-14 at 52, lines 8–11. In other
words, the undisputed evidence is that Chancellor McKinney did not rely exclusively on the
appeals committee, so the issue of whether the committee was independent is irrelevant.
Because the Court concludes that there is a fact question as to whether or not the Plaintiff
was terminated in retaliation for protected conduct, Defendants’ Motion for Summary Judgment
on that ground is DENIED.
The Court also DENIES summary judgment on Plaintiff’s defamation claim, now
asserted only against Jang. “If a party moves for summary judgment based on an affirmative
defense, such as section 101.106 [of the Texas Torts Claims Act], then it has the burden to
establish conclusively each element of the defense as a matter of law.” Schauer v. Morgan, 175
S.W.3d 397, 400 (Tex. App.—Hous. [1st Dist.] 2005, no pet.). Defendants have failed to
adequately develop the evidence of whether Jang was acting within the scope of his employment
when he made the allegedly defamatory remarks. Therefore, Defendants have not carried their
burden on this affirmative defense, and the Court cannot grant summary judgment on Plaintiff’s
defamation claim.
SO ORDERED.
March 31, 2013.

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BARBARA M. G. LYNN
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS

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