            IN THE UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 99-21109
                                          Summary Calendar
                                          _______________



                                      PAMELA R. LOOKSHIN,

                                                             Plaintiff-Appellee,

                                               VERSUS

                      ALDINE INDEPENDENT SCHOOL DISTRICT, ET AL.,

                                                             Defendants,

                                          FREDDY GOULD,

                                                             Defendant-Appellant.


                                   _________________________

                            Appeal from the United States District Court
                                for the Southern District of Texas
                                         (H-98-CV-2600)
                                 _________________________
                                           July 24, 2000


Before SMITH, BARKSDALE, and                            Freddy Gould appeals the denial of his mo-
  PARKER, Circuit Judges.                            tion for summary judgment based on qualified
                                                     immunity under TEX. EDUC. CODE ANN.
JERRY E. SMITH, Circuit Judge:*

                                                        *
                                                         (...continued)
   *
     Pursuant to 5TH CIR. R. 47.5, the court has     published and is not precedent except under the
determined that this opinion should not be           limited circumstances set forth in 5TH CIR. R.
                                   (continued...)    47.5.4.
§ 22.051(a). We affirm.                                  defense to liability.”1

                       I.                                   Our jurisdictiion over qualified immunity
   Pamela Lookshin was a teacher’s aid at                appeals is limited:
Stehlik Intermediate School; Gould was the
principal. Gould alleges that he was told that              District court orders denying summary
someone was removing disposed-food “slop”                   judgment on the basis of qualified
from a receptacle at the school. He asserts                 immunity are immediately appealable
that the culprit was Lookshin, that she was                 under the collateral order doctrine,
warned that her continued employment                        notwithstanding their interlocutory
depended on ceasing to remove further slop,                 character, when based on a conclusion
and that, when she continued to remove slop                 of law. See Mitchell v. Forsyth, 472
later that same day, she was, following proper              U.S. 511, 530 (1985). In contrast, such
procedure, terminated.                                      orders are not immediately appealable if
                                                            they are based on sufficiency of the
    Lookshin contests that the slop-stealing                evidence. See Johnson v. Jones, 515
incident is misdescribed and insists that she               U.S. 304, [319-20] (1995). Therefore,
was terminated because she thwarted Gould’s                 orders denying qualified immunity are
unwitnessed sexual advances. She sued, alleg-               immediately appealable only if they are
ing seven counts, including defamation,                     predicated on pure conclusions of law,
national origin discrimination, title VII                   and not if a "genuine issue of material
violations, Texas workers’ compensation                     fact" precludes summary judgment on
statute violation, assault, battery, and                    the question of qualified immunity.
intentional infliction of emotional distress
(“i.i.e.d.”). The district court dismissed all but       Coleman v. Houston Indep. Sch. Dist.,
the last three claims via summary judgment but           113 F.3d 528, 531 (5th Cir. 1997) (some
denied Gould’s claim of qualified immunity               citation information omitted). Because the is-
from the remaining counts under § 22.051(a).             sues appealed here implicate questions of
                                                         interpretation and application of relevant law,
                        II.                              they are properly before us.
   Lookshin questions whether we have
appellate jurisdiction, arguing that we may not                                III.
exercise jurisdiction over the appeal of a claim                               A.
of qualified immunity based solely on state                 Gould complains that the district court
law. Our precedent directs otherwise. “We                “erred when it applied the wrong standard in
have previously held that an order denying               evaluating [his] qualified immunity defense.”
qualified immunity under state law is                    He notes that the court relied, in defining the
immediately appealable as a “final decision,”
provided that “the state’s doctrine of qualified
immunity, like the federal doctrine, provides a             1
                                                              Cantu v. Rocha, 77 F.3d 795, 803 (5th Cir.
true immunity from suit and not a simple                 1996) (citing Sorey v. Kellett, 849 F.2d 960, 962
                                                         (5th Cir. 1988) (establishing that this framework is
                                                         employed even if the claim of qualified immunity is
                                                         based solely on state law)).

                                                     2
elements of qualified immunity, on City of
Lancaster v. Chambers, 883 S.W.2d 650, 653                                     B.
(Tex. 1994), which discussed official                      Gould argues, alternatively, that he should
immunity, derived from the common law,                  have been granted qualified immunity because
rather than immunity derived specifically from          the actions he allegedly tookSSgroping Look-
§ 22.051(a). He correctly states that “official         shin in his officeSSwere “incident to or within
immunity is a common law doctrine . . .                 the scope of his duties” in that he is
distinct from the statutory immunity created by         authorized, as principal, to summon employees
§ 22.051.” Downing v. Brown, 925 S.W.2d                 to his office. This reasoning fails to recognize
316, 319 (Tex. App.SSAmarillo), aff’d in part           that Lookshin does not allege assault, battery,
and rev’d in part, 935 S.W.2d 112 (1996).               and i.i.e.d. because she was summoned to the
                                                        office. She does not suggest that the summons
    In relying on City of Lancaster, the district       was an improper application of a principal’s
court indicated that “professional employees            authority. It is what allegedly happened after
receive immunity for acts within the scope of           the summons which she protests.
their duties as long as those acts are within the
scope of the employee’s authority and are tak-              Gould contends, though, that because the
en in good faith.” It is the last element to            alleged groping followed a sanctioned
which Gould objects; he acknowledges that,              summons, he is immune to suit based on it.
even under § 22.051, an act protected by qual-          He cites a wealth of inapposite caselaw.3
ified immunity must be “within the scope of             Some of these cases lack any relevance; the
the employee’s authority” as that element is            others illustrate the precariousness of Gould’s
discussed by the district court throughout its          argument.
order; he argues, however, that statutory im-
munity, unlike common-law based immunity,                  In Jones, the plaintiff, a substitute teacher,
does not require the party invoking the                 claimed school officials had libeled him in let-
protection to demonstrate good faith.                   ters written to one another evaluating his
                                                        workplace behavior. See Jones, 979 F.2d
    The district court then went on to deny             at 1005, 1006. We held that “circulation of
Gould statutory immunity not because he had             memoranda within [the school district]
failed to demonstrate good faith, but because           regarding Jones’s fitness for employment was
he had not demonstrated that his acts were “in-         within the scope of the defendants’
cident to or within the scope of [his] duties,”
which is an element drawn directly from                    2
Gould’s interpretation of the proper                        (...continued)
application of § 22.051(a). Even if error, the          dard harmless if conclusion unchanged).
district court’s stray reference to good faith,            3
                                                             See Jones v. Houston Indep. Sch. Dist., 979
never mentioned again or made part of its               F.2d 1004 (5th Cir. 1992); Anderson v. Blanken-
analysis, is harmless.2                                 ship, 790 F. Supp. 695, 697 (E.D. Tex. 1992);
                                                        Cox v. Galena Park Indep. Sch. Dist., 895 S.W.2d
                                                        745, 747 (Tex. App.SSCorpus Christi 1994, no
   2
     Cf. Orellana v. Kyle, 65 F.3d 29, 33 (5th          writ); Williams v. Conroe Indep. Sch. Dist., 809
Cir. 1995) (application of incorrect legal stan-        S.W.2d 954 (Tex. App.SSBeaumont 1991, no
                                   (continued...)       writ).

                                                    3
employment and involved the exercise of                         Gould has based his entire claim of qualified
judgment and discretion. The individual                     immunity on the fact that it is within his
defendants therefore are immune from                        discretion to call employees to his office. The
liability.” Id. at 1007.                                    alleged groping, however, did not spring from
                                                            the legitimate act of calling an employee to the
   Likewise, in Williams, a school bus driver
sued after he was terminated, allegedly for                    4
having propositioned a student, and was                         (...continued)
                                                            at 1305.
denied rehiring. See Williams, 809 S.W.2d
at 956. He sought relief for the state law
                                                               Gould points us, too, to a recent case that has
claims of defamation and i.i.e.d. Id. at 957.               nothing to do with qualified immunity but which,
The court rightly found that “decid[ing] not to             he argues, should guide our understanding of what
rehire Williams[,] . . . officiat[ing] at a post-           constitutes acts “in the scope of employment.” In
termination hearing held at Williams’ request,”             GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605
and acting as “one of the witnesses at that                 (Tex. 1999), four employees claimed that a
hearing” qualified as acts arising out of the               supervisor
scope of employment, because these
supervisory employees were required to make                    constantly harassed and intimidated them.
employment decisions about individual                          The employees complained about Shield’s
employees. Id. at 956, 957-58.                                 daily use of profanity, short temper, and his
                                                               abusive and vulgar dictatorial manner. The
   In both of these cases, the alleged tort arose              employees complained that, among other
                                                               offensive acts, [the supervisor] repeatedly
as part of the employment-related acts: re-
                                                               yelled, screamed, cursed, and even
viewing fitness and rendering employment de-                   “charged” at them.         In addition, he
cisions. In Anderson, meanwhile, the court                     intentionally humiliated and embarrassed the
merely assumed, without consideration, that a                  employees.
coach’s report to a local newspaper about ano-
ther coach’s recruiting violations came within              Id. at 608-09. A jury found this behavior to fit
the scope of employment. See Anderson, 790                  within the “scope of the supervisor’s employment”
F. Supp. at 696. The scope-of-employment                    for vicarious liability purposes. We are loath to
aspect of the qualified immunity was                        assume that Texas courts would transfer their un-
apparently neither specifically considered nor              derstanding of “scope of employment” from the
challenged.4                                                realm of vicarious liability to that of qualified im-
                                                            munity, given the radically different rationales for
                                                            the “scope of employment” consideration in each
                                                            and what that consideration accomplishes.
   4
      The other cases cited by Gould are entirely
irrelevant. In Cox, the claims were dismissed for               Even were we to employ GTE Southwest as a
want of specificity and proscription, so the relevant       model, however, we would note that however truly
qualified immunity issues were not broached on ap-          abusive the supervisor’s behavior was, it could still
peal. See Cox, 895 S.W.2d at 747-50. In Eugene,             be ascribed, at least nominally, to the employment-
the immunity in question was immunity from                  related act of motivating his workers and
federal, not state, claims and thus was considered          increasing productivity. It is impossible to imagine
under a different standard. See Eugene, 65 F.3d             to what employment-related purpose this alleged
                                       (continued...)       groping could be ascribed.

                                                        4
office as an appurtenance to the calling, but
followed the summons to the office as an inde-
pendent act. It lies therefore beyond the quali-
fied immunity creat ed solely by the fact that
Gould acted within his discretionary authority
in summoning Lookshin.

   The result presumably would be different if
Gould had shown that he had touched Look-
shin, if at all, in pursuit of the legitimate
employment activity of breaking up a fight, or
catching Lookshin as she was about to fall to
the ground, or for any other legitimate
purpose.     Gould, however, provides no
employment-related function that might justify
the alleged touching itself.

   Gould asserts that this touchingSSthat the
entire incidentSSdid not occur. We take no
position on the relative credibility of either
party. We merely conclude that Gould has
provided us no reason to decide, at the
summary judgment stage, that the fact that his
employment allowed him to call employees to
his office created complete immunity for any
unrelated act that followed that summons, re-
gardless of the nature of that subsequent al-
leged act.

   AFFIRMED.




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