                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00035-CV

TEXAS A&M UNIVERSITY, MARK HUSSEY, PH.D.
IN HIS OFFICIAL CAPACITY AS INTERIM PRESIDENT
OF TEXAS A&M AND DAVID VAUGHT, PH.D.,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS
DEPARTMENT HEAD OF DEPARTMENT HISTORY,
                                       Appellants
 v.

ERNEST STARKS, PH.D.,
                                                             Appellee



                          From the 272nd District Court
                               Brazos County, Texas
                         Trial Court No. 14-001701-CV-272


                                      OPINION

       In this accelerated appeal, Texas A&M University, Mark Hussey, Ph.D., in his

official capacity as Interim President of Texas A&M University, and David Vaught, Ph.D.,

individually and in his official capacity as Department Head of the Department of

History, appeal the trial court’s interlocutory order denying their plea to the jurisdiction
and motion for summary judgment. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(5),

(8) (West Supp. 2015). We will affirm in part and reverse in part.

                                        Background

       Ernest Starks, Ph.D., has sued TAMU, Hussey, and Vaught, alleging the following:

He is an African-American male over the age of forty and a full professor in TAMU’s

history department; he has been a TAMU faculty member for nearly twenty years. As a

faculty member, he has spoken out regarding TAMU’s “unwillingness to establish a

workplace that reflects equal and fair opportunity for African-Americans within its

faculty and administrative ranks.” He has spoken out at faculty meetings and to faculty

colleagues about the lack of racial and ethnic diversity within the Department of History

specifically. Furthermore, as a TAMU professor, he has experienced the following

“recent acts of discrimination and retaliation”:

          On April 12, 2013, Starks applied for the position of Faculty Ombuds Officer at
           TAMU, and the job announcement indicated that the position was to be filled
           by a full professor. At the time, Clare Gill, a younger white female, was an
           associate professor. In September 2013, Gill was promoted to full professor,
           and TAMU then announced that she had been selected for the Faculty Ombuds
           Officer position. “The decision to select a less qualified, white, younger, female
           over Starks, was an act of discrimination and retaliation towards him.”

          On August 30, 2013, in “an act of discriminatory animus,” Vaught issued a
           written reprimand to Starks, falsely accusing him of violating departmental
           guidelines regarding the preparation of syllabi. Starks tried to discuss the
           matter with Vaught, but Vaught instead prepared another written document
           that he then circulated to other administrators and faculty. The document
           reiterated the false allegations about the syllabi, threatened Starks’s future
           teaching of certain courses, and stated that Starks’s conduct would be
           considered in future performance reviews. This reaction to a problem with
           syllabi was unprecedented.



Tex. A&M Univ. v. Starks                                                               Page 2
          After filing his Texas Workforce Commission charge of discrimination against
           TAMU, Starks received an unfairly negative Annual Merit Review and
           Evaluation for the 2013 Academic Year. To correct his work performance
           record, Starks provided the Department with a written rebuttal to the Review
           and made a request that Vaught retract the inaccurate portions of the Review.
           Vaught refused and continued to take steps to discredit Starks, harm his
           reputation, and prevent advancement to a high-level position in TAMU
           administration.

          Because of his “animus towards African-Americans,” Vaught has refused to
           appoint Starks to any departmental committees or programs, despite Starks’s
           willingness to serve and despite other non-African-American faculty members
           being appointed to serve on multiple committees in an academic year. “Not
           being allowed to serve in such a role negatively impacts [Starks’s] ability to
           earn merit increases and be considered for advancement to top tier
           administrative positions.”

       Based on the foregoing allegations, Starks has asserted causes of action against

TAMU, Hussey, and Vaught for employment discrimination and retaliation in violation

of sections 21.051 and 21.055 of the Labor Code. Starks has also asserted free-speech

retaliation claims against Hussey and Vaught. Starks seeks monetary damages from

TAMU and equitable relief from Hussey and Vaught.

       TAMU, Hussey, and Vaught (collectively, Appellants) filed a plea to the

jurisdiction and motion for summary judgment, which the trial court denied.

                            TAMU’s Plea to the Jurisdiction

       In Appellants’ first issue, TAMU contends that the trial court erred in denying its

plea to the jurisdiction because it demonstrated that Starks presented no admissible

evidence establishing that he timely exhausted his administrative remedies.         More

specifically, TAMU argues that it demonstrated that (1) the only allegation by Starks that

qualifies as an “adverse employment action” and could therefore potentially support


Tex. A&M Univ. v. Starks                                                            Page 3
Starks’s discrimination claim is the denial of the Faculty Ombuds Officer position and (2)

Starks failed to establish that he filed a charge of discrimination within 180 days of being

informed of the denial of the Faculty Ombuds Officer position.

              We review a trial court’s ruling on a plea to the jurisdiction de novo.
       Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
       When a party has filed a plea to the jurisdiction challenging the pleadings,
       a reviewing court must construe the pleadings liberally in favor of the
       pleader and look to the pleader’s intent. See id. If the facts alleged
       affirmatively demonstrate the trial court’s jurisdiction to hear the cause, the
       plea to the jurisdiction must be denied. See id. If the pleadings do not
       contain sufficient facts to affirmatively demonstrate the trial court’s
       jurisdiction, but do not affirmatively demonstrate incurable defects in the
       jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should
       be afforded the opportunity to amend. See id. If the pleadings affirmatively
       negate the existence of jurisdiction, then a plea to the jurisdiction may be
       granted without allowing an opportunity to amend. See id. at 227.

               If in its plea to the jurisdiction a party challenges the existence of
       jurisdictional facts, the reviewing court considers relevant evidence
       submitted by the parties when necessary to resolve the jurisdictional issues
       raised, as the trial court is required to do. See id. If the evidence creates a
       fact question regarding the jurisdictional issue, then the plea to the
       jurisdiction must be denied. See id. at 227-28. However, if the relevant
       evidence is undisputed or fails to raise a fact question on the jurisdictional
       issue, then the court rules on the plea to the jurisdiction as a matter of law.
       Id. at 228. In ruling on a plea to the jurisdiction, a court does not consider
       the merits of the parties’ claims. See id. at 226-28; County of Cameron v.
       Brown, 80 S.W.3d 549, 555 (Tex. 2002).

Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 321 S.W.3d 1, 3-4 (Tex. App.—Houston

[14th Dist.] 2008), aff’d, 320 S.W.3d 829 (Tex. 2010).

       We begin with the contention that Starks failed to establish that he filed a charge

of discrimination within 180 days of being informed of the denial of the Faculty Ombuds

Officer position. Section 21.202 of the Labor Code states, “A complaint under this

subchapter must be filed not later than the 180th day after the date the alleged unlawful

Tex. A&M Univ. v. Starks                                                                  Page 4
employment practice occurred.” TEX. LAB. CODE ANN. § 21.202 (West 2015). The timely

filing of a complaint is mandatory, and when the defendant is a governmental entity, the

failure to timely file is a jurisdictional bar to suit. Prairie View A & M Univ. v. Chatha, 381

S.W.3d 500, 514 (Tex. 2012). The 180-day limitations period begins when the employee is

informed of the allegedly discriminatory employment decision. Specialty Retailers, Inc. v.

DeMoranville, 933 S.W.2d 490, 493 (Tex. 1996).

       Starks was informed that he was not awarded the Faculty Ombuds Officer position

on June 29, 2013. The 180-day limitations period thus ended on December 26, 2013. In

support of their plea to the jurisdiction, Appellants submitted a copy of Starks’s formal

“Charge of Discrimination” that shows that it was received by the Texas Workforce

Commission, Civil Rights Division, on December 31, 2013. TAMU has therefore shown

that Starks did not file his formal “Charge of Discrimination” within 180 days of being

informed of the denial of the Faculty Ombuds Officer position.

       The supreme court has held, however, that, to satisfy the timeliness requirement,

a sworn charge of discrimination filed outside the 180-day limitations period can relate

back to the date that the plaintiff filed the employment intake questionnaire. See Hennigan

v. I.P. Petroleum Co., 858 S.W.2d 371, 373 (Tex. 1993) (verified complaint related back to

and satisfied any deficiencies in unverified questionnaire that was timely filed); Tex. Tech

Univ. v. Finley, 223 S.W.3d 510, 515 (Tex. App.—Amarillo 2006, no pet.) (charge deemed

timely even though dated after deadline because plaintiff’s initial complaint letter, which

satisfied requirements of proper complaint, filed before deadline). Starks claims that the



Tex. A&M Univ. v. Starks                                                                Page 5
evidence shows that although his formal “Charge of Discrimination” was not filed until

December 31, 2013, his original complaint was filed on or about November 4, 2013.

         After Appellants filed their plea to the jurisdiction and motion for summary

judgment, Starks filed his first amended petition with exhibits attached. See State v. BP

Am. Prod. Co., 290 S.W.3d 345, 349-50 (Tex. App.—Austin 2009, pet. denied) (“In resolving

the jurisdictional challenges presented by the plea, we may … consider evidence that the

pleader has attached to its petition or submitted in opposition to the plea.”). Starks also

filed a response to the plea to the jurisdiction and motion for summary judgment, with

exhibits attached, and a sur-reply to the Appellants’ reply to his response to the plea to

the jurisdiction and motion for summary judgment, with exhibits attached. Starks points

in part to the following evidence in the exhibits to show that his complaint was filed on

or about November 4, 2013:

   (1)      a transmittal letter, dated November 4, 2013, from Starks’s counsel to “Intake
            Officer, Texas Workforce Commission, Civil Rights Division, 101 East 15th
            Street, #144T, Austin, TX 78778-0001,” stating that it was sent via email to
            EEOIntake@twc.state.tx.us and via certified mail, return receipt requested. The
            letter states, “Re: Dr. Ernest Starks – Texas A&M University Department of
            History – Revised.” The letter also states, “Please find enclosed Dr. Starks’s
            Intake Questionnaire and Charge of Discrimination. A Charge was submitted
            on behalf of Dr. Starks on Friday, November 1, 2013. Please replace that Charge
            with this document.”

   (2)      the “Employment Discrimination Complaint Form” from the Texas Workforce
            Commission, Civil Rights Division, which lists Starks as the complainant. The
            form states that it is to be returned by email to EEOIntake@twc.state.tx.us. It
            lists the mailing address as 101 East 15th Street, #144T, Austin, TX 78778-0001.
            A document entitled “Charge of Discrimination,” dated October 31, 2013, is
            incorporated and attached to the “Employment Discrimination Complaint




Tex. A&M Univ. v. Starks                                                              Page 6
             Form.” The “Charge of Discrimination” details Starks’s discrimination
             complaints against TAMU and is signed by Starks.1

    (3)      the USPS “green card” addressed to “Intake Officer, Texas Workforce
             Commission, Civil Rights Division, 101 East 15th Street #144T, Austin, TX
             78778-0001” that shows something was received by the Texas Workforce
             Commission on November 7, 2013.

          TAMU responds that this evidence does not establish that Starks filed anything

within the requisite time limit because:

    (1)      “the November 4, 2013 transmittal letter, which states that the law firm has
             ‘enclosed Dr. Starks’ Intake Questionnaire and Charge of Discrimination,’ does
             not include the certified mail article number found on the ‘green card’, nor does
             it include a date stamp from the TWCCRD”;

    (2)      while the “green card” “shows that a TWCCRD Intake Officer received
             something on or about November 7, 2013, nothing on that ‘green card’ or the
             certified mail receipt demonstrates that it was an intake questionnaire from
             Starks”; and

    (3)      “the ‘Employment Discrimination Complaint Form,’ that allegedly
             accompanied the November 4, 2013 transmittal letter, does not include any
             information in the section entitled, ‘DATE RECEIVED’ which would
             demonstrate exactly when the form was received by the TWCCRD.”

          As support for its argument, TAMU also relies on Tex. Dep’t of Pub. Safety v.

Alexander, 300 S.W.3d 62 (Tex. App.—Austin 2009, pet. denied). In Alexander, the sixteen

plaintiffs were required to file their charges of discrimination no later than May 29, 2002.

Id. at 70. In response to a plea to the jurisdiction, the plaintiff in question presented as

evidence: (1) a copy of her intake questionnaire, signed by her and dated on May 21,

2002, and (2) an affidavit stating that she “filed a charge of discrimination” concerning



1This is not the formal “Charge of Discrimination” mentioned above that the Texas Workforce
Commission, Civil Rights Division, received from Starks on December 31, 2013.


Tex. A&M Univ. v. Starks                                                                Page 7
the alleged discriminatory action on or before May 21, 2002. Id. at 75. The court held that

this evidence was insufficient to show that the plaintiff filed her questionnaire before the

180-day deadline. Id. at 76. The court stated, “[T]here must be something else in the

record to create a logical bridge between the completed intake questionnaire and the

timely filing of that questionnaire.” Id.

       We believe that, in this case, the transmittal letter and USPS “green card” provide

the necessary connection.       The transmittal letter states that “Dr. Starks’s Intake

Questionnaire” and “Charge of Discrimination” were sent to the Intake Officer at the

Texas Workforce Commission, Civil Rights Division, on November 4, 2013 via email and

certified mail, return receipt requested. The email and mailing addresses listed on the

transmittal letter for the Intake Officer at the Texas Workforce Commission, Civil Rights

Division, are the same email and mailing addresses provided on the “Employment

Discrimination Complaint Form” as the proper addresses for where to send the

completed form. The USPS “green card” then shows that something was received via

certified mail, return receipt requested, at that proper mailing address by the Texas

Workforce Commission on November 7, 2013. While this evidence may not conclusively

establish that Starks’s “Employment Discrimination Complaint Form,” along with the

incorporated and attached “Charge of Discrimination,” were received and filed by the

Texas Workforce Commission, Civil Rights Division, on November 7, 2013, the evidence

certainly creates a fact question regarding it. Cf. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex.

1987) (explaining that Texas Rule of Civil Procedure 21a regarding service sets up



Tex. A&M Univ. v. Starks                                                                 Page 8
presumption that letters and notices, when properly addressed, stamped, and mailed, are

presumed to have been duly received by addressee).

       We therefore conclude that based on the relation-back doctrine, the evidence

creates a fact question as to whether a “complaint” was filed within the 180-day

limitations period. Because there is a fact issue, the trial court did not err in denying

TAMU’s plea to the jurisdiction based on the ground that Starks failed to timely exhaust

his administrative remedies on his discrimination claim. See Kirby Lake Dev., Ltd., 321

S.W.3d at 4 (“If the evidence creates a fact question regarding the jurisdictional issue, then

the plea to the jurisdiction must be denied.”). We need not reach Appellants’ argument

that the only allegation by Starks that qualifies as an “adverse employment action” and

could therefore potentially support Starks’s discrimination claim is the denial of the

Faculty Ombuds Officer position. We overrule Appellants’ first issue.

                      Hussey’s and Vaught’s Plea to the Jurisdiction

       In Appellants’ second issue, Hussey and Vaught contend that the trial court erred

in denying their plea to the jurisdiction because Starks’s free-speech retaliation claim

against them in their official capacities is barred by sovereign immunity.

       Generally, sovereign immunity deprives a trial court of jurisdiction over a lawsuit

in which a party has sued the State or a state agency, unless the Legislature has consented

to suit. Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). A suit

against a government employee in his official capacity is a suit against his government

employer; therefore, an employee sued in his official capacity has the same governmental

immunity, derivatively, as his government employer. Franka v. Velasquez, 332 S.W.3d 367,

Tex. A&M Univ. v. Starks                                                                Page 9
382-83 (Tex. 2011). But there is an exception: an action alleging that the government

employee acted ultra vires. Id. An ultra vires action is one in which the plaintiff seeks

relief against a government employee in his official capacity who allegedly has violated

statutory or constitutional provisions by acting without legal authority or by failing to

perform a purely ministerial act. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372-73

(Tex. 2009). Ultra vires suits do not attempt to exert control over the State—they attempt

to reassert the control of the State. Id. at 372.

       When a plaintiff alleges that a government employee in his official capacity acted

ultra vires, we must examine whether the plaintiff’s petition sufficiently pleaded his

claims to defeat the government’s plea to the jurisdiction. See Miranda, 133 S.W.3d at 226.

While a plea to the jurisdiction “does not authorize an inquiry so far into the substance

of the claims presented that plaintiffs are required to put on their case simply to establish

jurisdiction,” the plaintiffs must do more than merely name a cause of action against the

state official and assert the existence of a constitutional violation. Id. at 223; see Andrade

v. NAACP of Austin, 345 S.W.3d 1, 11 (Tex. 2011) (considering merits of equal-protection

claim against Secretary of State in reviewing ruling on plea to jurisdiction and explaining

that Secretary retained immunity from suit unless plaintiffs pleaded “viable claim”); City

of Paris v. Abbott, 360 S.W.3d 567, 583 (Tex. App.—Texarkana 2011, pet. denied) (noting

that governmental defendant remains immune from suit absent plaintiff’s pleading of

viable claim). To state a claim within the waiver of sovereign immunity, the plaintiff

must plead a facially valid constitutional claim. See City of Houston v. Johnson, 353 S.W.3d

499, 504 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).

Tex. A&M Univ. v. Starks                                                               Page 10
       We begin with Starks’s allegations against Hussey. In his first amended petition,

Starks states that he is bringing a state constitutional free-speech retaliation claim against

Hussey for which he is seeking equitable relief. Starks alleges, “In retaliation for speaking

out, Dr. Starks was denied a promotion, excluded from departmental leadership, and

given undeserved negative reviews. Dr. Starks has also been kept out of leadership roles

at the university.” Hussey argues that these pleadings “fell well short of what is required

to proceed.” Hussey claims that Starks has failed to plead an ultra vires claim against him

and that, even if Starks has pleaded an ultra vires claim against him, Starks has failed to

plead a viable free-speech retaliation claim against him.

       The proper defendants in an ultra vires action are those officials whose acts or

omissions allegedly violated the plaintiff’s rights.         Montrose Mgmt. Dist. v. 1620

Hawthorne, Ltd., 435 S.W.3d 393, 413 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)

(citing Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621 (Tex. 2011)). Here, even though

Starks states that he is bringing a state constitutional free-speech retaliation claim against

Hussey, he does not allege in his pleading that Hussey was involved at all in any of the

alleged unconstitutional retaliatory conduct against him. In other words, Starks alleges

that in retaliation for speaking out, he was denied a promotion, excluded from

departmental and university leadership, and given undeserved negative reviews, but

Starks does not allege that Hussey had any involvement in the denial of a promotion to

him, his exclusion from departmental or university leadership, or his being given

undeserved negative reviews. Starks has therefore failed to plead an ultra vires claim

against Hussey. See id.; see also Heinrich, 284 S.W.3d at 372 (stating that to fall within ultra

Tex. A&M Univ. v. Starks                                                                Page 11
vires exception, suit must allege, and ultimately prove, official acted without legal

authority or failed to perform purely ministerial act).

       Starks acknowledges as much in his brief, and, citing City of Dallas v. England, 846

S.W.2d 957, 960 (Tex. App.—Austin 1993, writ dism’d w.o.j.), states that Hussey is a party

because he is one of the officials in authority at TAMU with the power to act on the

injunctive relief that Starks requests from the trial court. England, however, does not

support Hussey’s being a proper party even though Starks does not assert that he was

involved in any of the alleged unconstitutional retaliatory conduct. Instead, England

merely supports the general rule that “actions of a state official that are unconstitutional,

illegal, wrongful, or beyond statutory authority are not immunized by governmental

immunity” and that the proper remedy is for the party to sue the official who committed

the actions that are unconstitutional, illegal, wrongful, or beyond statutory authority, not

the governmental unit itself. See id. Accordingly, the trial court erred in denying

Hussey’s plea to the jurisdiction because Starks’s free-speech retaliation claim against

him in his official capacity is barred by sovereign immunity.

       We now turn to Starks’s allegations against Vaught. Starks makes the same

allegations against Vaught as he did against Hussey. Likewise, as with Hussey, Vaught

argues that Starks has failed to plead an ultra vires claim against him and that, even if

Starks has pleaded an ultra vires claim against him, Starks has failed to plead a viable free-

speech retaliation claim against him.

       As stated above, the proper defendants in an ultra vires action are those officials

whose acts or omissions allegedly violated the plaintiff’s rights. Montrose Mgmt. Dist.,

Tex. A&M Univ. v. Starks                                                               Page 12
435 S.W.3d at 413. In this case, Starks alleges that his state constitutional free-speech

rights were violated when, in retaliation for speaking out, he was denied a promotion,

excluded from departmental and university leadership, and given undeserved negative

reviews. For Starks’s allegations to implicate Vaught in the violation of his free-speech

rights, Starks must have alleged that Vaught was involved in the denial of a promotion

to Starks, his exclusion from departmental and university leadership, and his being given

undeserved negative reviews.

       Starks does not allege that Vaught had any involvement in the denial of a

promotion to him. Starks does not allege that Vaught was involved at all in anything

regarding the Faculty Ombuds Officer position. Therefore, Starks has not pleaded an

ultra vires claim against Vaught by alleging that Starks’s state constitutional free-speech

guarantees were violated when he was denied a promotion in retaliation for speaking out

regarding a matter of public concern. See id.; see also Heinrich, 284 S.W.3d at 372. Starks

does allege, however, that Vaught was involved in refusing to appoint him to any

departmental committees or programs. Starks has therefore pleaded an ultra vires action

against Vaught by alleging that Starks’s state constitutional free-speech guarantees were

violated when he was excluded from departmental and university leadership in

retaliation for speaking out regarding a matter of public concern. See Montrose Mgmt.

Dist., 435 S.W.3d at 413; see also Heinrich, 284 S.W.3d at 372. Similarly, although Starks

does not allege that Vaught affirmatively acted in giving Starks undeserved negative

reviews, Starks does allege that Vaught was involved by refusing to retract inaccurate

portions of his annual performance review. Therefore, we assume that Starks has

Tex. A&M Univ. v. Starks                                                            Page 13
pleaded an ultra vires action against Vaught by alleging that Starks’s state constitutional

free-speech guarantees were violated when he was given undeserved negative reviews

in retaliation for speaking out regarding a matter of public concern. See Montrose Mgmt.

Dist., 435 S.W.3d at 413; see also Heinrich, 284 S.W.3d at 372.

        Having concluded that Starks has pleaded an ultra vires claim against Vaught, we

next turn to Vaught’s contention that Starks has failed to plead a viable free-speech

retaliation claim against him in his official capacity. The parties agree that to establish a

free-speech retaliation claim against a government defendant, a plaintiff must prove the

following elements: (1) the plaintiff suffered an adverse employment action, (2) the

plaintiff’s speech involved a matter of public concern, (3) the plaintiff’s interest in

speaking outweighed the governmental defendant’s interest in promoting efficiency, and

(4) the protected speech motivated the defendant’s conduct. 2 See Juarez v. Aguilar, 666

F.3d 325, 332 (5th Cir. 2011); Nairn v. Killeen Indep. Sch. Dist., 366 S.W.3d 229, 244 (Tex.

App.—El Paso 2012, no pet.). Vaught challenges the first and fourth elements.

        Vaught first argues that Starks has failed to allege any adverse employment action

sufficient to support a free-speech retaliation claim. Vaught contends that the Fifth

Circuit has limited “adverse employment actions” to “discharges, demotions, refusals to

hire, refusals to promote, and reprimands” and that none of the alleged adverse



2 Starks claims that Vaught violated his right to free speech under the Texas Constitution; however, neither
party has argued that the elements of a free-speech retaliation claim under the Texas Constitution differ
from the elements of a federal First Amendment retaliation claim. We will therefore use federal
constitutional precedent in analyzing Starks’s claim. See Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002)
(“Where, as here, the parties have not argued that differences in state and federal constitutional guarantees
are material to the case, and none is apparent, we limit our analysis to the First Amendment and simply
assume that its concerns are congruent with those of article I, section 8.).
Tex. A&M Univ. v. Starks                                                                            Page 14
employment actions cited by Starks rise to that level. See Pierce v. Tex. Dep’t of Criminal

Justice, Institutional Div., 37 F.3d 1146, 1149 (5th Cir. 1994) (“Adverse employment actions

are discharges, demotions, refusals to hire, refusals to promote, and reprimands.”).

Starks responds that the U.S. Supreme Court has instead defined an “adverse

employment action” as one that a reasonable employee would find to be “materially

adverse,” i.e., “the employer’s actions must be harmful to the point that they could well

dissuade a reasonable worker from making or supporting a charge of discrimination”

under federal law. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct.

2405, 2409, 165 L.Ed.2d 345 (2006) (“[T]he [antiretaliation] provision [of Title VII of the

Civil Rights Act of 1964] covers those (and only those) employer actions that would have

been materially adverse to a reasonable employee or job applicant. In the present context

that means that the employer’s actions must be harmful to the point that they could well

dissuade a reasonable worker from making or supporting a charge of discrimination.”).

Starks argues that, under this standard, he has pleaded an adverse employment action or

that there is at least a fact issue concerning whether a “reasonable employee” would find

the actions of which he complains “materially adverse.” We disagree.

       Burlington did not address the standard for adverse employment actions in First

Amendment retaliation cases; instead, it involved Title VII’s antiretaliation provision. See

id. at 56-57, 126 S.Ct. at 2408-09. The Fifth Circuit has not yet determined whether the

Burlington standard for adverse employment actions applies to First Amendment

retaliation cases. See Gibson v. Kilpatrick, 734 F.3d 395, 400 n.4 (5th Cir. 2013), vacated on

other grounds, 134 S.Ct. 2874 (2014). Likewise, the Texas Supreme Court has not addressed

Tex. A&M Univ. v. Starks                                                               Page 15
the issue. Cf. Montgomery County v. Park, 246 S.W.3d 610, 614 (Tex. 2007) (adopting

Burlington standard with appropriate modifications to define what qualifies as “adverse”

personnel action within meaning of Texas Whistleblower Act). We therefore apply the

Fifth Circuit’s precedent that, for purposes of First Amendment retaliation claims,

“adverse employment actions” are discharges, demotions, refusals to hire, refusals to

promote, and reprimands.3 See Juarez, 666 F.3d at 332 (citing Sharp v. City of Houston, 164

F.3d 923, 933 (5th Cir. 1999)); Pierce, 37 F.3d at 1149.

        The adverse employment actions that Starks alleges in his free-speech retaliation

claim are the denial of a promotion, his exclusion from departmental and university

leadership, and his being given undeserved negative reviews.4 We need not determine

whether the alleged denial of a promotion to Starks constitutes an adverse employment

action; we have already concluded that because Starks has not alleged that Vaught was

involved in the denial of a promotion, Starks has not pleaded an ultra vires claim against

Vaught regarding the denial of a promotion. Additionally, because Starks has not alleged



3Some district courts in the Fifth Circuit have formally applied the Burlington standard to First Amendment
retaliation claims. See, e.g., Peyton v. City of Yazoo City, 764 F.Supp.2d 831, 838 (S.D. Miss. 2011); Laredo
Fraternal Order of Police v. City of Laredo, No. L-04-134, 2008 WL 678698, at *2 (S.D. Tex. Mar. 12, 2008). But
others have not. See, e.g., Jackson v. Tex. S. Univ., 997 F.Supp.2d 613, 629, 638, 649-50 (S.D. Tex. 2014). Starks
points out that one of our sister courts, in the context of a First Amendment retaliation claim, did generally
define an “adverse employment action” using the Burlington standard. See Nairn, 366 S.W.3d at 244. There
was no dispute in Nairn, however, about whether the conduct by the plaintiff’s employer against her was
an adverse employment action; therefore, the Nairn court did not address the issue. See id. at 244-45.

4  In addition to these alleged retaliatory adverse employment actions, Starks alleges that Vaught was
involved in issuing a written reprimand to him and then in preparing another written document that
Vaught circulated to administrators and faculty and that reiterated the allegations in the reprimand,
threatened Starks’s future teaching of certain courses, and stated that Starks’s conduct would be considered
in future performance reviews. Starks does not allege, however, that Vaught’s conduct regarding the
reprimand and subsequent document occurred in retaliation for speaking out regarding a matter of public
concern. Instead, Starks refers to this alleged conduct as “discriminatory.”
Tex. A&M Univ. v. Starks                                                                                 Page 16
that Vaught was involved in the denial of a promotion, Starks has not alleged facts to

support the fourth element of a free-speech retaliation claim against Vaught regarding

the denial of a promotion. See Juarez, 666 F.3d at 332. The fourth element would require

Starks to prove that his speaking out on a matter of public concern motivated Vaught’s

conduct regarding the denial of a promotion. See id. But because Starks does not allege

that Vaught was involved with the denial of a promotion, there is no alleged conduct by

Vaught that could have been motivated by Starks’s speaking out on a matter of public

concern.

       We therefore turn to Starks’s alleged exclusion from departmental and university

leadership and his allegedly being given undeserved negative reviews. Regarding his

exclusion from departmental and university leadership, Starks alleges that Vaught has

refused to appoint him to any departmental committees or programs despite his

willingness to serve and despite other non-African-American faculty members being

appointed to serve on multiple committees in an academic year. Starks further alleges

that departmental program and committee work is an important part of his annual merit

review consideration and that not being allowed to serve in such a role negatively

impacts his ability to earn merit increases and to be considered for advancement to top-

tier administrative positions. Regarding his being given undeserved negative reviews,

Starks states in his briefing that he is not complaining that the performance evaluation

itself was an adverse employment action.      Instead, Starks argues that the adverse

employment action committed by Vaught was that he refused to correct alleged

inaccuracies in the performance evaluation.

Tex. A&M Univ. v. Starks                                                         Page 17
       The Fifth Circuit has held in the education context that “’decisions concerning

teaching assignments, pay increases, administrative matters, and departmental

procedures,’ while extremely important to the person who dedicated his or her life to

teaching, do not rise to the level of a constitutional deprivation.” Harrington v. Harris, 118

F.3d 359, 365 (5th Cir. 1997) (quoting Dorsett v. Bd. of Trs. for State Colls. & Univs., 940 F.2d

121, 123 (5th Cir. 1991)). The court in Dorsett stated:

       We have neither the competency nor the resources to undertake to
       micromanage the administration of thousands of state educational
       institutions. Of all fields the federal courts “’should hesitate to invade and
       take over, education and faculty appointments at [the university] level are
       probably the least suited for federal court supervision.’”

Dorsett, 940 F.2d at 124 (citations omitted). We thus conclude that Vaught’s alleged

conduct in Starks’s being excluded from departmental and university leadership and his

being given undeserved negative reviews does not qualify as an adverse employment

action. Vaught’s alleged actions do not constitute discharges, demotions, refusals to hire,

refusals to promote, or reprimands. Starks has not, therefore, pleaded a viable free-

speech retaliation claim against Vaught in his official capacity. See Juarez, 666 F.3d at 332.

       Because Starks has not pleaded an ultra vires claim against Vaught in his official

capacity regarding the denial of a promotion to Starks and has failed to otherwise plead

a viable free-speech retaliation claim against Vaught in his official capacity, the trial court

erred in denying Vaught’s plea to the jurisdiction because Starks’s free-speech retaliation

claim against him in his official capacity is barred by sovereign immunity. We sustain

Appellants’ second issue.



Tex. A&M Univ. v. Starks                                                                 Page 18
       Starks argues that he should nevertheless be afforded the opportunity to re-plead.

If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial

court’s jurisdiction, but do not affirmatively demonstrate incurable defects in the

jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded

the opportunity to amend. Miranda, 133 S.W.3d at 226. Hussey and Vaught argue that

Starks’s pleadings regarding his constitutional free-speech retaliation claim have an

incurable defect because Starks suffered no qualifying adverse employment action.

Liberally construing the live pleadings in Starks’s favor, however, we believe that while

the pleadings do not contain facts sufficient to affirmatively demonstrate the trial court’s

jurisdiction over Starks’s claims against Hussey and Vaught in their official capacities,

neither do they affirmatively demonstrate incurable defects in jurisdiction. The trial court

ruled in Starks’s favor, so Starks had no occasion in the trial court to ask for an

opportunity to amend his pleadings to cure any defect. The proper course of action is to

reverse the trial court’s order as to Starks’s claims against Hussey and Vaught in their

official capacities and remand with instructions for the trial court to give Starks a

reasonable opportunity to amend his pleadings in an attempt to properly plead these

claims. See Lazarides v. Farris, 367 S.W.3d 788, 804 (Tex. App.—Houston [14th Dist.] 2012,

no pet.).




Tex. A&M Univ. v. Starks                                                             Page 19
                           Vaught’s Motion for Summary Judgment

       In Appellants’ third issue, Vaught contends that the trial court erred in denying

his motion for summary judgment based on official immunity.

       The standard of review in traditional summary judgment cases is well settled. The

issue on appeal is whether the movant met its summary judgment burden of establishing

that no genuine issue of material fact exists and that it is entitled to judgment as a matter

of law. TEX. R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

A defendant may meet this burden by conclusively negating an essential element of the

plaintiff’s case or conclusively establishing all of the necessary elements of an affirmative

defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

       We take as true all evidence favorable to the nonmovant. Rhone-Poulenc, Inc. v.

Steel, 997 S.W.2d 217, 223 (Tex. 1999); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910,

911 (Tex. 1997). We indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. Rhone-Poulenc, Inc., 997 S.W.2d at 223; Science Spectrum, Inc., 941

S.W.2d at 911. When the trial court does not specify the grounds upon which it ruled, the

summary judgment may be affirmed if any of the grounds stated in the motion is

meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

       Vaught first argues within this issue that, regardless of the capacity in which he

was sued, Starks was required to plead a facially viable claim of a constitutional violation

and that Starks has failed to plead such a violation because he has failed to allege that he

suffered an adverse employment action that was substantially motivated by his protected



Tex. A&M Univ. v. Starks                                                               Page 20
speech. Vaught argues more specifically that Starks’s performance evaluation is not an

adverse employment action under free-speech retaliation law.

       Government employees sued in their individual capacities may not rely on the

defense of sovereign immunity. Cloud v. McKinney, 228 S.W.3d 326, 333 (Tex. App.—

Austin 2007, no pet.). Instead, they may move for summary judgment and establish their

entitlement to judgment as a matter of law by conclusively negating an essential element

of the plaintiff’s case or conclusively establishing all of the necessary elements of an

affirmative defense, including official immunity. See Cathey, 900 S.W.2d at 341; Cloud, 228

S.W.3d at 333-34. But a summary judgment may not be granted on grounds that are not

raised in the motion for summary judgment. McConnell v. Southside Indep. Sch. Dist., 858

S.W.2d 337, 341 (Tex. 1993).

       Here, Vaught, in his individual capacity, did not move for summary judgment on

the ground that he could conclusively negate an essential element of Starks’s free-speech

retaliation claim, i.e., that he could conclusively establish that Starks suffered no adverse

employment action. Thus, the trial court could not have properly granted Vaught’s

motion for summary judgment on this ground, and we cannot therefore hold that the trial

court erred in denying Vaught’s motion for summary judgment on this ground.

       Vaught next argues that the trial court erred in denying his motion for summary

judgment because he conclusively established that he was entitled to official immunity.

Official immunity is an affirmative defense that protects government employees from

personal liability.    Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000).          A

governmental employee is entitled to official immunity: (1) for the performance of

Tex. A&M Univ. v. Starks                                                              Page 21
discretionary duties; (2) within the scope of the employee’s authority; (3) provided the

employee acts in good faith. Id. Because official immunity is an affirmative defense, to

obtain summary judgment on official immunity, the governmental employee must

conclusively prove each element of the defense. Id.

       We begin with whether Vaught conclusively proved that he was engaged in the

performance of discretionary duties. Whether an act is discretionary or ministerial

depends on whether it involves personal deliberation or simple adherence to an order.

Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 425 (Tex. 2004). “Ministerial acts are

those for which ‘the law prescribes and defines the duty to be performed with such

precision and certainty as to leave nothing to the exercise of discretion or judgment.’” Id.

(quoting Comm’r of the Gen. Land Office v. Smith, 5 Tex. 471, 479 (1849)). If the public

official has no choice but to obey an order, the act is ministerial. Id. (citing City of Lancaster

v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)). If an action involves personal deliberation,

decision, and judgment, however, it is discretionary. Id.

       In his free-speech retaliation claim against Vaught, Starks alleges that he was given

undeserved negative reviews in retaliation for speaking out regarding a matter of public

concern. Starks alleges that Vaught was involved in Starks’s being given undeserved

negative reviews because Vaught refused to retract inaccurate portions of Starks’s annual

performance review.

       Vaught argues that the evidence conclusively establishes that he was undertaking

discretionary duties in reconsidering Starks’s performance evaluation. To support his

argument, Vaught points in part to his own affidavit in which he states that in 2012, the

Tex. A&M Univ. v. Starks                                                                  Page 22
Department of History approved the “Procedures and Criteria for Annual Merit

Performance Evaluation and Review.” In the attached “true and correct copy” of the

document, the detailed “Procedures” for conducting the annual performance evaluation

include in pertinent part:

       Approximately six weeks after the beginning of the succeeding calendar
       year, the department’s executive committee will evaluate the faculty with
       the objective of locating each member in the appropriate category of
       performance using a five-point scale: 4 = Superior; 3 = Excellent; 2 =
       Commendable; 1 = Satisfactory; 0 = Unsatisfactory. Typically, areas of
       responsibility will be weighted as follows: Research 60%, Teaching 20%,
       Service 20%. . . .

       Upon the completion of the evaluations, the department head will notify
       each member of the faculty in writing of the executive committee’s
       assessment of his/her performance, including individual scores and
       rankings in research, teaching, and service and overall ranking and
       weighted composite score. This memorandum constitutes the faculty
       member’s annual review. The department head will also include an
       assessment of each faculty member’s progress in research, teaching, and
       service, which will vary from rank to rank. . . .

       Faculty members, upon indicating receipt by signing a copy of the
       document, will be given the opportunity to question their rankings in
       writing to the department head, who will consult the executive committee
       when reconsidering the evaluation. In such a case, the department head will
       issue to the faculty member a final written notification explaining the
       decision. Additional meetings between the department head and the
       faculty member may be held at either’s request to discuss expectations
       and/or professional progress. . . . [Emphasis added.]

The detailed “Criteria” that the department’s executive committee was to use in

determining the appropriate category of performance for each faculty member includes

assessing such things as whether the faculty member had “a significant and productive

research agenda” or a “highly productive research agenda,” whether the faculty member

had “demonstrated competence in the classroom” or “extraordinary teaching,” etc. It

Tex. A&M Univ. v. Starks                                                             Page 23
could be reasonably inferred that the department head, in reconsidering the evaluation,

also had to make such assessments and therefore performed actions involving personal

deliberation, decision, and judgment. In fact, Vaught states in his affidavit that as the

Head of the Department of History in the College of Liberal Arts at TAMU, a faculty

member may appeal his evaluation scores to him. Vaught further states that Starks filed

an appeal of his evaluation and that, “In ranking Dr. Starks’s teaching efforts, I reviewed

his self-evaluation and personally deliberated on the appropriate ranking. Issuing a

ranking of Dr. Starks’ teaching was not a ministerial duty, but involved discretion on my

part to determine the most appropriate ranking.”

       Starks responds that performing a complete review of the performance evaluation

was a ministerial duty because the review process does not leave room for the department

head to pick and choose which portions of the evaluation he will reconsider. But Starks

does not allege in his free-speech retaliation claim against Vaught that Vaught failed to

perform a complete review of Starks’s performance evaluation in retaliation for speaking

out. Instead, as stated above, Starks alleges that, in retaliation for speaking out, he was

given undeserved negative reviews, which happened at least in part because Vaught

refused to retract inaccurate portions of Starks’s annual performance review. Therefore,

it is this conduct, the conduct that is alleged in Starks’s free-speech retaliation claim, for

which Vaught seeks to establish official immunity and for which he must therefore

establish constitutes discretionary duties. In light of Vaught’s evidence, we conclude that

Vaught conclusively established that he was undertaking discretionary duties in

reconsidering Starks’s performance evaluation. See id.

Tex. A&M Univ. v. Starks                                                               Page 24
       We next turn to whether Vaught conclusively established that he was acting

within the scope of his authority. Vaught states that Starks does not dispute that Vaught

was acting within the scope of his authority regarding actions Vaught took concerning

Starks’s evaluation. But a nonmovant has no burden to respond to a summary judgment

motion unless the movant conclusively establishes its cause of action or defense. Rhone-

Poulenc, Inc., 997 S.W.2d at 222-23. “The trial court may not grant summary judgment by

default because the nonmovant did not respond to the summary judgment motion when

the movant’s summary judgment proof is legally insufficient.” Id. at 223. A movant must

establish its right to summary judgment on the issues expressly presented to the trial

court by conclusively proving all elements of the movant’s cause of action or defense as

a matter of law. Id. Accordingly, the burden was on Vaught to conclusively prove that

he was acting within the scope of his authority.

       A public official acts within the scope of his authority if he is discharging duties

that are generally assigned to him. Ballantyne, 144 S.W.3d at 424. In the “Procedures and

Criteria for Annual Merit Performance Evaluation and Review” discussed above, the

department head is assigned to reconsider the evaluation. Vaught, as the head of the

department, was therefore acting within the scope of his authority when he reconsidered

Starks’s performance evaluation. We conclude that Vaught conclusively established that

he was acting within the scope of his authority in reconsidering Starks’s performance

evaluation.

       Finally, we address whether Vaught conclusively established that he was acting in

good faith in reconsidering Starks’s performance evaluation. To establish the element of

Tex. A&M Univ. v. Starks                                                            Page 25
good faith, a public official must conclusively prove that “a reasonably prudent official,

under the same or similar circumstances, could have believed that his conduct was

justified based on the information he possessed when the conduct occurred.” Id. at 426.

The test for good faith turns not on “’what a reasonable person would have done,’” but

rather on “’what a reasonable [person] could have believed.’” Id. (quoting Telthorster v.

Tennell, 92 S.W.3d 457, 465 (Tex. 2002)). The official “must prove only that a reasonably

prudent [official], under similar circumstances, might have [acted the same way].”

Telthorster, 92 S.W.3d at 465. If the official meets this burden, the nonmovant “must show

that ‘no reasonable person in the defendant’s position could have thought the facts were

such that they justified defendant’s acts.’” Chambers, 883 S.W.2d at 657.

       As stated above, the “Procedures and Criteria for Annual Merit Performance

Evaluation and Review” for the Department of History provide:

       Upon the completion of the evaluations, the department head will notify
       each member of the faculty in writing of the executive committee’s
       assessment of his/her performance, including individual scores and
       rankings in research, teaching, and service and overall ranking and
       weighted composite score. This memorandum constitutes the faculty
       member’s annual review.

Accordingly, Vaught states in his affidavit that after the Executive Committee conducted

their review, he would notify each faculty member in writing of the Committee’s

assessment of performance.

       Vaught states that, in an April 12, 2014 memo, he notified Starks of the

Committee’s assessment of his performance for 2013. In the memo, Vaught notified

Starks that the Executive Committee evaluated his 2013 performance as follows:


Tex. A&M Univ. v. Starks                                                           Page 26
          Research: Unsatisfactory (vote: 5-0 + 1 abstention)
          Teaching: 6 abstentions
          Service: Unsatisfactory (vote: 5-0 + 1 abstention)

          Overall evaluation: Unsatisfactory

Vaught then gave Starks a lengthy explanation for his evaluation based on the

“Procedures and Criteria for Annual Merit Performance Evaluation and Review” for the

Department of History:

          As stated in the department’s revised “Procedures and Criteria for Annual
          Merit Performance Evaluation and Review” (2012), to earn a satisfactory
          ranking in research, a faculty member needs to provide tangible evidence
          of a significant and productive research agenda—one demonstrating
          progress, trajectory, and sustainability—over a three year period (pp. 3-4).
          Evidence of such an agenda consists of single-authored research
          monographs, edited volumes of scholarly essays, peer-reviewed articles in
          disciplinary or area-specific journals, essays published in edited volumes,
          significant translations, external grants and fellowships, and article or book
          awards (pp. 3-4). The Executive Committee found that your research
          productivity over the three year period 2011-2013 does not meet the criteria
          for a satisfactory ranking. On your 2013 Annual Report Form,5 you cited
          only a reprinted scholarly essay first published in 2003. Note, however, that
          our annual review guidelines deem reprinted articles “unlikely to be
          considered for merit” or evidence of a significant and productive research
          agenda. Under “status of long-term research projects,” you mention three
          manuscripts in various stages of development, but the Executive
          Committee, in accordance with the guidelines, did not consider works in
          progress as criteria for making satisfactory progress. The Executive
          Committee also notes that with regard to research, the pertinent sections on
          your previous two annual review forms (2011 and 2012) are entirely blank.

5   The “Procedures and Criteria for Annual Merit Performance Evaluation and Review” provide:

          On or about December 1, the department head will distribute blank “Faculty Member’s
          Annual Report” forms … along with copies of this document. Each member of the faculty
          will be required to submit the completed report by January 20 of the succeeding year. The
          “Faculty Member’s Annual Report” will detail the academic activities of a calendar year
          (January 1 through December 31) and will serve as the primary basis for evaluating a
          faculty member’s professional progress. It is incumbent upon each faculty member to
          make the best case for his/her accomplishments on the form and to state, with clarity and
          purpose, his/her short and long term goals for professional development (teaching,
          research, and service) in the section at the end of the form.
Tex. A&M Univ. v. Starks                                                                              Page 27
       No publications, grants, or awards in the previous three years yields no
       tangible evidence of productivity—hence, the unsatisfactory ranking in
       research.

       Because of your lack of any professional service over the three-year period,
       the Executive Committee, following the guidelines, also ranked you
       unsatisfactory in service. All six members abstained from evaluating your
       teaching due to your remarks under “courses taught” on the Annual Report
       Form. Note, however, that an overall unsatisfactory evaluation “results
       from a faculty member’s failure to meet departmental standards in one or
       more of the three areas of responsibility” (p. 3).

Vaught states in his affidavit that he “approved the Executive Committee’s rankings and

assessment.”

       The “Procedures and Criteria for Annual Merit Performance Evaluation and

Review” for the Department of History provide, “Faculty members, upon indicating

receipt by signing a copy of the document, will be given the opportunity to question their

rankings in writing to the department head, who will consult the executive committee

when reconsidering the evaluation.” Vaught states in his affidavit that Starks filed an

appeal of the evaluation. Vaught then explains:

       Because the six members of the Executive Committee abstained from giving
       Dr. Starks a score for teaching, I reviewed and evaluated the teaching
       contributions listed by Dr. Starks in his Annual Report. There are five
       categories of scores that can be given in the area of teaching: superior,
       excellent, commendable, satisfactory and unsatisfactory. . . . As stated in
       the Department criteria, “A satisfactory ranking reflects a faculty member
       having met departmental standards in all three areas of responsibility.”
       Based on my review of Dr. Starks’ Annual Report, I believed this ranking
       accurately reflected his teaching efforts for the 2013 calendar year. The
       Executive Committee reviewed this ranking and concurred.

       ....

             . . . Teaching efforts that demonstrate a “superior” ranking would
       include receipt of a University-level teaching award. . . . An “excellent”

Tex. A&M Univ. v. Starks                                                              Page 28
       ranking is awarded to those faculty members who contribute “substantially
       to the graduate program, as evidenced by chairing two or more committees
       and serving on more than four others; or contributing substantially to the
       undergraduate program with the award of three or more “commendable”
       teaching accomplishments. . . . To demonstrate efforts deserving of a
       “commendable” ranking, a faculty member must demonstrate “extra
       engagement in the classroom . . . beyond meeting basic expectations.” . . .

               . . . The information produced by Dr. Starks in his Annual Report
       showed that he taught: three courses in the Spring 2013 semester, one
       course in the Summer 2013 semester and two courses in the Fall 2013
       semester. . . . Dr. Starks did not teach any independent study. He listed
       “none” under “Contributions to Undergraduate Education.” He stated that
       he was a committee member for one Ph.D candidate. Therefore, his efforts,
       as reflected in the Report that he prepared and submitted for review, did
       not . . . reflect the level needed for a ranking of “superior,” “excellent” or
       “commendable” effort.

       Starks asserts that the foregoing evidence does not establish that Vaught was

acting in good faith because Vaught swore that he reviewed only Starks’s evaluation in

teaching. Starks argues that because he questioned the entirety of his evaluation, the

“Procedures and Criteria for Annual Merit Performance Evaluation and Review” for the

Department of History required Vaught to reconsider the entirety of his evaluation.

Starks thus contends that because Vaught failed to follow the procedures and instead

reviewed only a portion of Starks’s evaluation, a fact issue exists as to whether Vaught

acted in good faith. We disagree.

       Vaught does not state in his affidavit that he reconsidered only Starks’s evaluation

in teaching. Rather, Vaught states, “I approved the Executive Committee’s rankings and

assessment.” When Starks appealed, however, Vaught reviewed Starks’s evaluation in

teaching because the six members of the Executive Committee abstained from giving

Starks a score for teaching. Furthermore, Starks’s own evidence shows that Vaught did

Tex. A&M Univ. v. Starks                                                                Page 29
not reconsider only Starks’s evaluation in teaching. Attached to Starks’s response to

Appellants’ motion for summary judgment and plea to the jurisdiction is a memo from

Vaught to Starks detailing Vaught’s “Reconsideration of [Starks’s] 2013 Annual Review.”

Along with explaining why Starks earned a ranking of satisfactory in teaching, Vaught

explained why he denied Starks’s appeal of his unsatisfactory ranking in service and

research. The explanations are based on the “Procedures and Criteria for Annual Merit

Performance Evaluation and Review” for the Department of History.

       Based on the foregoing, we conclude that Vaught met his burden of conclusively

proving that a reasonably prudent official, under the same or similar circumstances,

could have believed that Vaught’s conduct was justified based on the information he

possessed when the conduct occurred. Vaught therefore conclusively established that he

was acting in good faith in reconsidering Starks’s performance evaluation. See Ballantyne,

144 S.W.3d at 426. Moreover, because we have concluded that Vaught met his burden of

conclusively establishing all of the necessary elements of his affirmative defense of

official immunity, we hold that the trial court erred in denying Vaught’s motion for

summary judgment on official immunity. We sustain Appellants’ third issue.

                                       Conclusion

       We reverse that portion of the trial court’s order denying Vaught’s motion for

summary judgment and render summary judgment in favor of Vaught in his individual

capacity. We reverse that portion of the trial court’s order denying Hussey’s and

Vaught’s plea to the jurisdiction and remand that portion of the case to the trial court

with instructions for the trial court to give Starks a reasonable opportunity to amend his

Tex. A&M Univ. v. Starks                                                           Page 30
pleadings in an attempt to properly plead those claims. We affirm the remaining portion

of the trial court’s order.



                                              REX D. DAVIS
                                              Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed in part/Reversed in part
Opinion delivered and filed July 27, 2016
[CV06]




Tex. A&M Univ. v. Starks                                                        Page 31
