     Case: 14-40469      Document: 00513527666         Page: 1    Date Filed: 05/31/2016




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
                                      No. 14-40469                               May 31, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
SUSAN MILLS, A Tenured Faculty Member, University of Texas -
Brownsville,

              Plaintiff–Appellant,

v.

JULIET GARCÍA, In her Official Capacity; ALAN F. J. ARTIBISE, In his
Official Capacity; DANIEL HEIMMERMAN, In his Official Capacity;
UNIVERSITY OF TEXAS AT BROWNSVILLE, a Domestic Political
Corporation,

              Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:13-CV-68


Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Having granted Defendants–Appellees’ Motion to Recall the Mandate
and to Modify the Opinion, we withdraw the prior opinion, 614 F. App’x 174 (5th
Cir. 2015), and substitute the following, which is amended only as to Part III.B:




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                        No. 14-40469
      Plaintiff–Appellant Susan Mills was a tenured English professor at the
University of Texas at Brownsville (UT-Brownsville). When it was first
recommended that Mills be terminated, an independent faculty hearing
committee unanimously found that the initial decision to terminate Mills “was
arbitrary and unreasonable” and recommended that Mills be retained.
Nonetheless, the President of UT-Brownsville rejected this recommendation
and terminated Mills. Mills sued, asserting that the decision to terminate her
tenure constituted an arbitrary deprivation of her property interest as a
tenured professor. The district court granted UT-Brownsville’s motion for
summary judgment on Mills’s substantive due process claim. Because there is
a genuine dispute of material fact whether UT-Brownsville’s President failed
to consider a serious miscalculation in deciding to terminate Mills, we reverse
the district court’s grant of summary judgment and remand.
              I. FACTUAL AND PROCEDURAL BACKGROUND
      Susan Mills was a tenured professor in the English Department at UT-
Brownsville with English M.A. and B.A. degrees. When UT-Brownsville ended
its partnership with a local community college, university officials expected a
decline in enrollment and initiated a “reduction in force” that ultimately
resulted in Mills’s termination.
A.    The Reduction-in-Force Process
      To facilitate the reduction in force, 1 the President of UT-Brownsville,
Defendant–Appellee Dr. Juliet García, appointed faculty members from each
department to serve on departmental review committees. These committees
reviewed the credentials of faculty members and recommended which faculty
should be terminated.




      1   This process and its guidelines were referred to as the “Provost’s Charge.”
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      The task fell on the departmental review committee to recommend four
English    Department faculty         members for        termination. The English
Department had twenty-one faculty members and space for only seventeen
under the reduction in force. Under the rules and regulations established by
the Executive Vice Chancellor for Academic Affairs for the University of Texas
Regents in accordance with the Southern Association of Colleges and Schools
(SACS), 2 the committee favored faculty with terminal postgraduate degrees
(most commonly PhDs) in the fields in which they taught.
      Importantly, the protocol established an overall preference for discipline-
specific degrees over education degrees. As a policy, Ed.D. degrees (short for
Doctor of Education) would not be considered “terminal degrees in the
discipline or in a related discipline . . . outside of the College of Education.” The
SACS protocol also required at least eighteen hours of postgraduate
coursework within the discipline taught to qualify as a teacher in that
discipline—i.e., to teach English, a professor must have completed at least
eighteen hours of English postgraduate coursework.
      Essentially, the departmental review committee sorted the faculty
members by their education into categories numbered from one to seven—the
first level containing the most qualified faculty members assured of being
retained, and the seventh containing the least qualified faculty recommended
for termination. The committee recommended that all fourteen of the faculty
with English, rhetoric, or linguistics PhDs be retained (levels one and two), as
well as one professor with a PhD “minor in English” (level three). Thus, fifteen
slots were filled by professors with PhDs, leaving two remaining slots. The
committee also sorted all three of the faculty without postgraduate English



      2 Under Texas law, the UT Regents’ rules and regulations have the force and effect of
law. Foley v. Benedict, 55 S.W.2d 805, 808 (Tex. 1932).
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                                 No. 14-40469
degrees into level seven and recommended that they be terminated—this
group included Mary Therese Gallegos, as elaborated further below. That left
three faculty members in the middle—with English master’s degrees, but
without English PhDs—for two slots; one would be recommended for
termination. These three individuals were Mills, Elizabeth Vidaurri, and Amy
Frazier.
B.    Mills or Gallegos?
      As discussed further below, Frazier voluntarily left, and Gallegos was
recommended for retention; so this appeal boils down to the question whether
the UT-Brownsville officials arbitrarily preferred Mary Therese Gallegos to
Mills in violation of substantive due process. This question turns on a serious
miscalculation of Gallegos’s relevant credentials. Mills has a B.A. in English
and an M.A. in English, both from UT-Brownsville; whereas Gallegos has an
Ed.D from Harvard University and an M.A. in secondary and adult education
from the University of New Mexico. Thus, under the protocol, Gallegos did not
initially receive preference for her postgraduate education degrees, and the
committee placed her in level seven—recommending her for termination.
      Within level six, the committee sorted the three professors with English
master’s degrees. The committee deemed all three “good teachers.” Because
Vidaurri served as department coordinator for dual enrollment, the committee
concluded that she had distinguished herself positively from the other two
candidates. As between Frazier and Mills, the committee concluded that,
because Frazier received an “Exceptional Merit” award in 2009 that Mills had
not received, Frazier should be ranked ahead of Mills. That left Mills as the
eighteenth-ranked     English   Department    professor,   so   the   committee
recommended that Mills be terminated. As the only terminated professor with
a postgraduate English degree, Mills was ranked the highest among the faculty


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                                      No. 14-40469
recommended for termination. Mills was later rehired by UT-Brownsville to a
non-tenured position as a lecturer.
       1. The Minority Recommendation
       Dr. Charles Dameron, the English Department chair, dissented from the
committee’s recommendation and filed a minority recommendation. In that
recommendation, he expressed his view that Gallegos should be retained over
anyone within level six. He justified this position based on Gallegos’s
education, experience, and value as “a workhorse in the department.”
       Dameron noted that there was an issue whether Gallegos’s credentials
(namely, her lack of a postgraduate English degree) qualify her to teach
undergraduate English at all under the SACS protocol—which, as noted,
requires at least eighteen postgraduate hours of study in the discipline taught.
       Dameron explained that Gallegos’s postgraduate “transcripts show that
she has at least 24 graduate hours in linguistics and writing courses, so,” in
Dameron’s view, “she meets the SACS minimum requirement of 18 hours that
all UTB faculty must meet.”
       As explained below, this last point turns out to be false. Based on this
misimpression, Dameron recommended that Gallegos be included in Priority
Level Five and retained over “the three M.A.-qualified faculty in Priority Level
Six.” Defendant–Appellee and UT-Brownsville Provost and Vice President for
Academic Affairs 3 Dr. Alan Artibise agreed with the minority recommendation
and instructed the departmental review committee to “consider Mary Gallegos’
Master of Arts degrees in Secondary/Adult Teacher Education and Elementary
Education to be ‘in the teaching field’” of English. The committee accordingly
submitted a second recommendation—this time, categorizing Gallegos as level



       3The Provost is the chief operations officer at UT-Brownsville, and the Vice President
for Academic Affairs is the chief academic officer.
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                                        No. 14-40469
five and recommending that she be retained, and that Frazier and Mills be
terminated. President García adopted this recommendation.
       2. Frazier Resigns and Mills Appeals
       Frazier opted to accept a voluntary buyout, but Mills appealed the
termination decision. 4 Thus, Mills was next in line after Gallegos for the
coveted seventeenth slot, as the faculty hearing committee’s report notes. 5
       The hearing committee heard argument and received testimony from
Mills, Provost Artibise, and minority-recommendation author Dameron,
among others. The hearing committee found that Mills had proven by a greater
weight of the evidence “that the decision to terminate her was arbitrary and
unreasonable.” 6 Specifically, the committee’s report noted that Dameron
testified “that he had double counted the [linguistics] courses and that there
were only 9 hours” of pertinent English coursework in Gallegos’s postgraduate
transcript. The committee found that the “reassignment of Mary Therese
Gallegos to Level 5 was unreasonable” to a professor who has a master’s
degrees in the teaching discipline, and that, because Gallegos does not have a
master’s degree in English, she should have been placed in level seven as
initially recommended. The committee also found that because “Amy Frazier
[was] taking severance, Susan Mills now becomes eligible for non-


       4  ROA.2164.
       5  This is a point of dispute. Mills points to the faculty hearing committee’s report
saying so. By contrast, the district court and UT-Brownsville point to testimony that Mills’s
placement on the list would not matter—she would have been terminated either way.
        On summary judgment, we must take all reasonable inferences in favor of Mills, the
nonmovant. See Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264 (5th Cir. 1991)
(“Because factual disputes may not be resolved on motion for summary judgment, the
plaintiff need not offer all of the evidence tending to support its case, only enough evidence
‘from which a jury might return a verdict in [its] favor.’” (alteration in original)). Therefore,
we conditionally infer that Mills would have obtained the seventeenth slot but for Gallegos’s
placement in level five.
        6 See Univ. of Tex. Sys. Bd. of Regents Rules & Regulations 31008, § 4.4 (“The

institution has the burden to prove good cause for termination by the greater weight of the
credible evidence.”).
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                                  No. 14-40469
termination,” and it unanimously recommended to the president that she
“accept Professor Susan Mills’[s] appeal of her termination.”
      The president rejected the faculty hearing committee’s recommendation
and denied Mills’s appeal.
                                      ***
      Mills sued the UT-Brownsville officials and the university in federal
court, asserting claims for deprivation of procedural and substantive due
process in violation of the Fourteen Amendment under 42 U.S.C. § 1983,
seeking injunctive relief. After an abbreviated period for discovery, the district
court adopted the magistrate judge’s recommendation to convert UT-
Brownville’s motion to dismiss into a motion for summary judgment, and
granted summary judgment to the Defendants–Appellees. Mills timely
appealed only her substantive-due-process claim.
           II. JURISDICTION AND STANDARD OF REVIEW
      The district court had federal-question jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction to review the district court’s final judgment. 28
U.S.C. § 1291. We review a grant of summary judgment de novo. Coleman v.
Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). Summary judgment
is appropriate if “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). We view the facts in the light most favorable to the nonmovant
and draw all reasonable inferences in the nonmovant’s favor. Coleman, 113
F.3d at 533.
                              III. DISCUSSION
      The sole issue on appeal is whether there is a genuine dispute of material
fact that UT-Brownville deprived Mills of her property interest in continued




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                                          No. 14-40469
public employment in violation of substantive due process. 7 To prevail on a
claim for violation of substantive due process in the public-employment
context, the plaintiff must show “(1) that [s]he had a property interest/right in
[her] employment, and (2) that the public employer’s termination of that
interest was arbitrary or capricious.” Moulton v. City of Beaumont, 991 F.2d
227, 230 (5th Cir. 1993). Here, it is undisputed that as a tenured English
professor, Mills had a property interest in continued employment and that she
has abandoned her procedural-due-process claim. Thus, the sole issue is
whether UT-Brownsville’s decision was substantively arbitrary or capricious.
A.       Substantive Due Process Legal Standard
         A public employer’s decision to terminate a tenured employee’s property
interest in continued employment is arbitrary or capricious if the decision “so
lacked a basis in fact” that it may be said to have been made “without
professional judgment.” Texas v. Walker, 142 F.3d 813, 819 (5th Cir. 1998). The
terminated employee “must show that the decision was ‘made without a
rational connection between the known facts and the decision or between the
found facts and the evidence.’” Lewis v. Univ. of Tex. Med. Branch, 665 F.3d
625, 631 (5th Cir. 2011) (per curiam) (quoting Meditrust Fin. Servs. Corp. v.
Sterling Chems., Inc., 168 F.3d 211, 215 (5th Cir. 1999)).
         The standard for establishing a substantive due process violation is
“demanding.” Spuler v. Pickar, 958 F.2d 103, 107 (5th Cir. 1992). This is so
because “a federal court is generally not the appropriate forum in which to
review the multitude of personnel decisions that are made daily by public
agencies.” Honore v. Douglas, 833 F.2d 565, 569 (5th Cir. 1987) (citing Bishop
v. Wood, 426 U.S. 341 (1976)).



         7   Mills abandoned the procedural due process claim that she asserted in the district
court.
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                                       No. 14-40469
       That said, we have also observed that “[t]his measure of judicial restraint
. . . does not require slavish deference to a university’s arbitrary deprivation of
a vested property right.” Id. (collecting cases). Our decision in Honore
illustrates the application of the substantive due process standard on summary
judgment. In Honore, the Thurgood Marshall School of Law of Texas Southern
University effectively terminated an associate law professor who had been
vocally critical of the dean, even though the faculty committee had
unanimously recommended that he be granted tenure and retained. Id. at 567.
The trial court granted the public employer’s motion for summary judgment,
and we reversed. Id. at 568, 570. We explained that the law professor was an
adequate teacher who published legal scholarship, started a moot court
competition and a law review, and chaired faculty committees as well as
started a research and writing program. Id. at 569. “This testimony[] alone,”
we reasoned, “creates a genuine issue of material fact as to the arbitrary and
capricious nature of [his] dismissal.” Id. Therefore, we held that the professor
was “entitled to a jury resolution of his substantive due process claim.” Id. 8
B.     Analysis
       Applying the substantive-due-process legal standard, we hold that had
the final decision maker, President García, fully considered that Dameron
erroneously double-counted Professor Gallegos’s coursework and nonetheless
decided to trust her department chair’s minority opinion, the decision to
terminate Mills would not have been arbitrary or capricious as a matter of law.
However, because that material fact is subject to genuine dispute, the decision



       8 Because Mills sues the UT-Brownsville officials in their official capacities for
prospective injunctive relief—rather than damages—there is no qualified-immunity issue.
Cf. Walker, 142 F.3d at 819 (affirming district court’s decision to grant qualified immunity to
the university officials on summary judgment because the university’s decision to terminate
him did not so lack “a basis in fact that the[] decision to terminate him was arbitrary,
capricious, or taken without professional judgment”).
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                                    No. 14-40469
of the district court must be reversed. It is undisputed that Gallegos’s
transcript only reflected nine hours of postgraduate English coursework, and
that eighteen hours of postgraduate English coursework are required to teach
undergraduate English at UT-Brownsville. It is also undisputed that Dr.
Dameron’s recommendation, on which García based her decision to terminate
Mills, stated, erroneously, that Gallegos had eighteen hours. 9
      There is a genuine issue of fact, however, about whether García was
aware of and appreciated the error when making her termination decision. At
the preliminary-injunction hearing in May 2013, García was questioned about
the faculty hearing committee’s findings and provided conflicting answers. On
the one hand, to the question “Did . . . anybody indicate to you that Dr.
Dameron . . . admitted that the amount of hours held by Dr. Gallegos was
problematic?” García responded “We did not discuss that, no.” On the other
hand, García appeared to correct herself with the next question and answer:
“But you did review that yourself, . . .?” García responded: “I knew that. Yes, I
did, I’m sorry.”
      At her deposition, García provided further conflicting testimony, saying
that she did not recall “reading the comment made by the appellate committee
that, ‘Dr. Dameron also said putting Gallegos in Level 5 is problematic.’” Nor
did she recall that the appellate opinion explained that, “‘[o]n the matter of
Mary Gallegos qualifying for Level 5, Dr. Dameron said, ‘Strict letter of the
law, there is a concern,’” referring to Gallegos’s lack of postgraduate English
coursework.
      Viewing this evidence in the light most favorable to Mills, as we must,
we conclude a factfinder could reasonably infer that President García failed to


      9  At her deposition in November 2013, García testified that Dr. Dameron’s minority
recommendation “weighed heavy” in her deliberation “because of his broad-based experience
both as a department chair, as a dean and as vice president for academic affairs.”
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                                   No. 14-40469
consider evidence, available to her, that Dameron’s minority recommendation
was fundamentally flawed. See Lindsey v. Sears Roebuck & Co., 16 F.3d 616,
619 n.2 (5th Cir. 1994). A factfinder, therefore, could reasonably conclude that
García’s decision to terminate Mills was made “without professional
judgment,” Walker, 142 F.3d at 819, or “without a rational connection between
the known facts and the decision or between the found facts and the evidence,”
Lewis, 665 F.3d at 631 (internal quotation marks omitted); see also Walker, 142
F.3d at 819 (decision is arbitrary if it “so lacked a basis in fact”).
      UT-Brownsville argues that “due process is not violated when an appeal
hearing is held before an advisory panel whose recommendations are
ultimately rejected.” UT-Brownsville’s argument purports to rely on our
decision in Honore, 833 F.2d at 568. UT-Brownsville’s reliance on Honore is
misplaced because Honore stands for the contrary proposition. Though UT-
Brownsville correctly points out that the faculty committee in Honore
“unanimously recommended tenure,” a recommendation that was rejected by
the university president, we ultimately reversed summary judgment for the
university on the professor’s substantive-due-process claim. 833 F.2d at 568–
69. UT-Brownsville conflates our decision upholding summary judgment as to
the plaintiff’s procedural due process claim, id. at 568 (“We find no merit in
Honore’s claim of a denial of procedural due process.”), with our decision
reversing summary judgment on the substantive due process claim, id.
(“[D]espite this finding of procedural adequacy, we do not agree with the trial
court’s rejection of the substantive due process claim.”). As in Honore, here, the
faculty hearing committee recommended that Mills be retained and that
Gallegos be terminated, and there exists a genuine dispute whether President
García rejected its recommendation without considering its express finding
that Dameron had double-counted Gallegos’s coursework. This evidence, taken
together with Mills’s academic credentials and unblemished performance
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                                       No. 14-40469
evaluations, “creates a genuine issue of material fact as to the arbitrary and
capricious nature of [Mills’s] dismissal.” See id. at 569. As in Honore, Mills is
“entitled to . . . resolution of [her] substantive due process claim” at trial. See
id. 10
                                   IV. CONCLUSION
         For the foregoing reasons, we REVERSE the district court’s decision
granting summary judgment on Mills’s substantive due process claim and
REMAND for further proceedings consistent with this opinion.




          Because Mills has sought only equitable relief under § 1983, she is not entitled to a
         10

jury trial. See Harkless v. Sweeny Indep. Sch. Dist., 427 F.2d 319, 324 (5th Cir. 1970).
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