Wetherbe v. Smith

593 F. App'x 323
Court of Appeals for the Fifth Circuit·Decided November 24, 2014·No. No. 13-11162·Published·Cited by 6 cases

Opinion

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 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 [325] 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.

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 off-site interview had gone poorly, he did not like the fact that Wetherbe had no tenure, and he did not agree with “some of [Weth-erbe’s] philosophies on being a leader.”

In a meeting with Dean Mclnnes 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 Smith became aware of his views on tenure during the application process for the Horn Professorship. In his deposition, Smith confirmed that he thought Weth-erbe’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 Out[326] reach, 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 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

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Wetherbe v. Smith, 593 F. App'x 323 (5th Cir. 2014).

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