Butler v. Collins

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 25, 2025
• Docket: 23-10072
• Status: Unpublished

Opinion

Case: 23-10072 Document: 126-1 Page: 1 Date Filed: 06/25/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-10072 FILED June 25, 2025 ____________ Lyle W. Cayce Cheryl Butler, Clerk

Plaintiff—Appellant,

versus

Jennifer M. Collins; Steven C. Currall; Roy P. Anderson; Julie P. Forrester; Harold Stanley; Paul Ward; Southern Methodist University,

Defendants—Appellees. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:18-CV-37 ______________________________

Before Southwick, Engelhardt, and Wilson, Circuit Judges. Per Curiam: * Defendant-Appellee Southern Methodist University (“SMU”) pre- viously employed Plaintiff-Appellant Cheryl Butler as a non-tenured law pro- fessor at the SMU Dedman School of Law. After being denied tenure in 2016 and leaving the law school in 2017, Butler sued SMU and a number of its administrators and professors (the “Individual Defendants”), asserting _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-10072 Document: 126-1 Page: 2 Date Filed: 06/25/2025

No. 23-10072

federal- and state-law claims arising from and/or related to her tenure appli- cation and its denial. Deciding that the Texas Commission on Human Rights Act, Texas Labor Code §21.001 et seq., preempts Butler’s negligent supervi- sion claim against SMU, as well as her fraud, defamation, and conspiracy-to- defame claims against the Individual Defendants, the district court granted the defendants’ Rule 12(b)(6) motion to dismiss as to those claims. Thereaf- ter, following additional motion practice, Butler’s remaining claims were dis- missed by summary judgment granted in the defendants’ favor. On appeal, Butler challenges the district court’s dismissal rulings and certain of the district court’s non-dispositive orders. Given the answer pro- vided to the preemption question that we previously certified to the Supreme Court of Texas, we REVERSE the district court’s Rule 12(b)(6) dismissal of Butler’s common-law tort claims against the Individual Defendants, VA- CATE that aspect of the district court’s judgment, and REMAND for fur- ther proceedings regarding those claims. Otherwise, we AFFIRM, and de- cline Butler’s request that we reassign the matter to another district judge. I. In 2011, SMU hired Butler as an assistant law professor. After a man- datory third-year performance review, Butler’s employment contract with SMU was renewed and she was eligible for tenure consideration in the 2015 fall semester. At some point during that semester, however, an illness caused Butler to seek an extension of the tenure vote to a later semester. That re- quest was denied, but SMU later approved Butler’s request for leave under the Family Medical Leave Act for the 2016 spring semester. Butler’s tenure committee, chaired by Professor Roy Anderson, submitted a report concluding that Butler met SMU’s tenure standards for scholarship and service but not teaching. And, in January 2016, the law faculty voted to not recommend tenure for Butler. After Butler

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unsuccessfully appealed the negative recommendation to SMU Law School Dean Jennifer Collins, and then to SMU’s then-Provost Stephen Currall, the denial of her tenure application became final. Butler completed the 2016– 2017 “terminal year” of her contract but taught no classes during that academic year. After her employment at SMU ended, Butler filed this lawsuit, assert- ing various claims arising from and/or related to SMU’s consideration and/or denial of tenure, including breach of contract, discrimination, retalia- tion, and defamation. Butler sued SMU and several of its employees, includ- ing the Individual Defendants—Anderson, Collins, Currall, Associate Prov- ost Julie Forrester, Vice President for Executive Affairs Harold Stanley, and General Counsel Paul Ward. 1 As set forth in her second amended complaint, Butler asserted Texas common-law claims for breach of contract, fraud, def- amation, conspiracy to defame, and negligent supervision, as well as statutory claims under 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964 (“Ti- tle VII”), 42 U.S.C. §§ 2000e–2000e-17; the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. §§ 701–794a; the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101–12213; the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601–2664; and the Texas Commission on Human Rights Act (“TCHRA”), Texas Labor Code §§ 21.001 et seq. Following removal of the action to federal court in January 2018, the defendants filed a Rule 12(b)(6) motion to dismiss, contending that the TCHRA preempts Butler’s claim for negligent supervision against SMU, and her fraud, defamation, and conspiracy-to-defame claims against the

_____________________ 1 Although Butler initially named several additional SMU employees as defendants, the district court dismissed the claims against those defendants without prejudice under Rule 4(m) of the Federal Rules of Civil Procedure for failure to effect service.

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Individual Defendants. In March 2019, the district court granted the motion as to Butler’s negligent supervision claim against SMU (Count 8) and the fraud, defamation, and conspiracy-to-defame claims against the Individual Defendants (Counts 1–7), but denied it as to her FMLA and § 1981 claims (Counts 10–12 and 23–26). After discovery and various motion practice, the district court granted SMU’s motion for summary judgment regarding the entirety of Butler’s remaining claims, dismissing them with prejudice. This appeal followed. Insofar as the district court decided that the TCHRA preempts the fraud, defamation, and conspiracy-to-defame claims that Butler asserted against the Individual Defendants—SMU employees—we previously certi- fied the following question to the Supreme Court of Texas: Does the Texas Commission on Human Rights Act “TCHRA”), Texas Labor Code § 21.001, et seq., preempt a plaintiff-employee’s common-law defamation and/or fraud claims against another employee to the extent that the claims are based on the same course of conduct as dis- crimination and/or retaliation claims asserted against the plain- tiff’s employer? See Butler v. Collins, No. 23-10072, 2024 WL 3633698, at *6 (5th Cir. Aug. 2, 2024). The Supreme Court of Texas accepted our certified question, re- sponding: Chapter 21 of the Texas Labor Code authorizes suits against employers arising out of various forms of discrimination, harassment, and retaliation in the workplace. In Waffle House, Inc. v. Williams, we held that Chapter 21 provides the exclusive remedy against an employer when the “gravamen of a plaintiff’s case” is Chapter 21-covered discrimination. 313 S.W.3d 796, 799 (Tex. 2010). The Fifth Circuit asks via

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certified question whether Chapter 21 similarly forecloses common law causes of action—here, for defamation and fraud— against another employee when the claims are based on the same course of conduct. We answer that narrow question “no.” Chapter 21 subjects only employers to statutory liability for covered discriminatory and retaliatory conduct and does not purport, either expressly or by implication, to immunize individuals from liability for their own tortious conduct merely because that conduct could also give rise to a Chapter 21 claim against a different defendant. Butler v. Collins, No. 24-0616, 2025 WL 1478180, at *1 (Tex. May 23, 2025). Considering the answer to our certified question, we reverse the district court’s dismissal of Butler’s state-law tort claims against the Individual De- fendants as preempted by the TCHRA, and remand for further proceedings regarding those claims. II. In addition to challenging the district court’s state-law preemption ruling, Butler appeals a number of the district court’s non-dispositive orders, as well as its summary judgment dismissal of her remaining claims. A grant of summary judgment is reviewed de novo. Hagen v. Aetna Ins. Co., 808 F.3d 1022, 1026 (5th Cir. 2015). The other rulings are reviewed for an abuse of discretion. See, e.g., Matter of Wynn, 889 F.2d 644, 646 (5th Cir. 1989) (attor- ney’s withdrawal as counsel of record); Dominick v. Mayorkas, 52 F.4th 992, 995 (5th Cir. 2022) (denial of Butler’s Rule 56(d) motion); L.A. Pub. Ins. Ad- justers, Inc. v. Nelson, 17 F.4th 521, 524 (5th Cir. 2021) (Rule 6(b) extensions of time); Geiserman v. MacDonald, 893 F.2d 787, 793 (5th Cir. 1990) (modifi- cation of Rule 16(b) scheduling orders). Regarding the district court’s other rulings, including the district court’s summary judgment dismissal of Butler’s remaining claims, we have carefully reviewed the parties’ submissions, applicable law, and the record in

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this matter. After granting two motions seeking extensions of the deadline for filing an opposition to SMU’s motion for summary judgment, modifying other pre-trial deadlines at the parties’ request, and permitting Butler to sub- stitute new counsel of record five times, the district court did not abuse its discretion in denying Butler’s third and fourth requests for additional exten- sions of that deadline. Our cases have long recognized the significant discre- tion accorded to district courts relative to the management of their dockets. See, e.g., Kendricks v. Methodist Children’s Home, No. 21-50336, 2022 WL 944295, at *2 (5th Cir. Mar. 29, 2022) (unpub.) (per curiam) (citing cases); Geiserman, 893 F.2d at 792–93. And Rules 6 and 16 of the Federal Rules of Civil Procedure condition a movant’s entitlement to extensions of time, and modification of scheduling orders, on court approval and demonstrating good cause and excusable neglect. See Fed. R. Civ. P. 6(b), 16(b)(3).

Although a more indulgent judge might have been persuaded to grant Butler’s third and/or fourth extensions of time, that fact does not invalidate the district court’s refusals to grant those requests. Rather, on the instant record, the court’s determinations that Butler (and her counsel) had not es- tablished excusable neglect and good faith, and lack of prejudice to the de- fendants, are not clearly erroneous. Thus, no abuse of discretion occurred. See L.A. Public Ins. Adjusters, 17 F.4th at 524–25 (client’s and attorney’s ne- glect must be excusable (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 391–92, 396–97 (1993)); id. at 525 (client’s ill-advised reliance on counsel does not justify late filing)); see also Kitchen v. BASF, 952 F.3d 247, 254 (5th Cir. 2020) (“[The] district court has discretion to refuse to accept a party’s dilatory response to a motion for summary judgment . . . and has discretion to deny extending the deadline when no excusable neglect is shown.” (citing Adams v. Travelers Indem. Co. of Connecticut, 465 F.3d 156, 161 (5th Cir. 2006)).

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Butler contends that the district court erred in treating the defend- ants’ motion for summary judgment as unopposed, accepting the defend- ants’ assertions of fact as undisputed, and determining that the defendants had established entitlement to summary judgment on her remaining claims. For the same reasons that the district court did not abuse its discretion in denying Butler’s third and fourth requests to extend the deadline for filing an opposition to the motion for summary judgment, the district court also was not required to consider Butler’s untimely submitted opposition memoran- dum. Kitchen, 952 F.3d at 254 (confirming that “district court has discretion to refuse to accept a party’s dilatory response to a motion for summary judg- ment” (citing Adams v. Travelers Indem., 465 F.3d 156, 161–62 (5th Cir. 2006)). The district court did not err in treating the motion as unopposed, and accepting its assertions of fact as undisputed. See Fed. R. Civ. P. 56(e). Nor are we convinced that the district court improperly granted a “de- fault” summary judgment based solely on Butler’s failure to timely file an opposition to the motion for summary judgment. The district court evalu- ated the defendants’ citations of legal authority, identifying the elements of each of Butler’s claims addressed therein, and the lack of supporting proof for each element, in determining that SMU had established the necessary prima facie showing of entitlement to summary judgment on each of Butler’s claims. Because Butler bears the burden of proof on all of her claims, the de- fendants satisfied their summary judgment burden under Rule 56 by asserting the absence of supporting evidence establishing a genuine dispute of material fact and demonstrating their entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c), (e); Austin v. Kroger Tex., 864 F.3d 326, 335 & n. 10 (5th Cir. 2017); Geiserman, 893 F.2d at 792; Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988). The defendants were not required to negate the existence of evidence supporting Butler’s claims, and the district court

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was not obligated to search for such evidence. See, e.g., Austin, 864 F.3d at 335; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (district court not required to “sift through record looking for evidence to support a party’s opposition to summary judgment” (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n.7 (5th Cir. 1992))). Finally, Butler has not iden- tified any reversible error in the district court’s analysis of governing law and its application here. The district court’s summary judgment ruling is af- firmed. III. Butler finally asks that, in the event we remand this matter to the district court for additional proceedings, we also order that it be assigned to a different district judge. In support of the request for reassignment, Butler maintains that “[t]here is considerable evidence that Judge Brown acted inappropriately and was otherwise incapable of acting neutrally in these proceedings. It is not reasonable to expect that she could set aside her preconceptions of Butler and [Attorney Young] let alone cast aside prejudicial favoritism of SMU Law.” Butler also asserts that “Judge Brown did not conduct herself or these proceedings in a manner expected of federal judges in any matter, let alone a civil rights case.” Disagreeing, the defendants contend that “the district court has diligently applied this court’s precedent,” and that none of the statements that Butler references constitutes a personal attack on Butler or her attorneys. Our power to reassign “is an extraordinary one and is rarely invoked.” Miller v. Sam Houston State Univ., 986 F.3d 88, 892 (5th Cir. 2021) (cleaned up). We see insufficient reason and decline to do so here, but leave

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to the district court, on remand, to consider whether recusal may be warranted. REVERSED; VACATED, AND REMANDED, IN PART; AFFIRMED IN PART.