                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit



                                  No. 01-20228




       NAWARUT CHARUPATANAPONG, also known as Nancy Lee Lim,

                                                         Plaintiff-Appellee,


                                     VERSUS


                      UNIVERSITY OF HOUSTON; ET AL

                                                                   Defendants,

  MUSTAFA F. LOKHANDWALA; MARK A. STRATTON; BHAGAVAN JANDHYALA,

                                                       Defendants-Appellants.


           Appeal from the United States District Court
                For the Southern District of Texas
                          (H-99-CV-2858)
                           May 15, 2002


Before DUHÉ, WIENER and BARKSDALE, Circuit Judges.

PER CURIAM:*

      Mustafa   F.   Lokhandwala     (“Lokhandwala”),      Mark    A.   Stratton

(“Stratton”), and Bhagavan Jandhyala (“Jandhyala”) (collectively,

“Appellants”)    appeal     the    district   court’s     denial   of   summary

judgment based on their qualified immunity defense. Because the

genuine   issues     of   fact    that   exist   are    material   to   whether

  *
    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opinion should not be published and is not precedent except under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.
Appellants’ actions in denying tenure were objectively reasonable,

relevant to step two of the qualified immunity test, we affirm the

judgment of the district court.

                     FACTUAL AND PROCEDURAL BACKGROUND

      In 1993, the University of Houston (“the University”) hired

Nawarut Charupatanapong (“Appellee”),1 an Asian female, as an

assistant professor in its College of Pharmacy (“COP”). Appellee

applied for and was denied tenure three times. Only her 1998

application is at issue here.

      The tenure process in the COP is multi-tiered, and reviews at

every level are considered in the final decision. First, the

department chair recommends for or against tenure. Then, the

College Promotion       and   Tenure   Committee    (“College    Committee”),

composed    of   COP    faculty,       reviews     the   case   and   makes     a

recommendation. Next, the Dean of the COP makes a recommendation,

followed    by   a   University-wide    Promotion    and     Tenure   Committee

(“University     Committee”),      composed   of   faculty    drawn   from    the

University as a whole. After considering all of these evaluations,

the Provost of the University (“Provost”) makes a recommendation to

the President of the University, who ultimately makes the tenure

decision.

      When evaluating a candidate for tenure, reviewers at the

University consider three categories of performance - research and

  1
     In the depositions and documents presented to the courts,
Appellee is also referred to as Nancy Lee Lim or Nancy Lee.

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scholarship, including the volume and quality of a candidate’s

work,   research   proposals,    and    secured     funding;   teaching;   and

service.

      Stratton,    the   chair   of    Appellee’s    department,   conducted

Appellant’s first performance review in 1994, and noted his concern

about the lack of focus in her scholarship. Appellee claims that

thereafter Stratton discriminated against her in work assignments

and grant opportunities. In July 1995, she complained of this to

Stratton, and he told her if she was unhappy, she should find a job

elsewhere.2 She later complained to Lokhandwala (the Dean of the

College), and filed a complaint with the University’s Affirmative

Action Office (“AAO”).      In March 1997, Appellee filed a complaint

with the Equal Employment Opportunity Commission (“EEOC”), and the

next month she filed a complaint with the University Grievance

Committee (“UGC”).

      When Appellee was considered for tenure in 1998, Stratton, the

College Committee, and Lokhandwala all recommended against tenure.

The University Committee voted in favor of tenure. Finally, the

Provost recommended against tenure and Appellee was denied tenure.

      Appellee was terminated in 1999 as a result of being denied

tenure. She filed a second EEOC charge based on her 1998 denial of

  2
    This fact is disputed; however, in the context of this appeal
we assume it to be true. In reviewing a denial of summary judgment
on the basis of qualified immunity, the facts assumed by the
district court are taken as true and are viewed in a light most
favorable to the Appellee. See Coleman v. Houston Indep. Sch.
Dist., 113 F.3d 528, 531-32 (5th Cir. 1997).

                                       3
tenure, and sued the University and individual defendants alleging

race-based     and     gender-based     discrimination       and   retaliation,

actionable under Title VII and 42 U.S.C. §§ 1981, 1983, 1985, and

2000. At the close of discovery, Appellants filed a Motion for

Summary Judgment on the basis of qualified immunity. The district

court denied that motion, and appellants timely filed their appeal.

                              STANDARD OF REVIEW

     This court reviews the district court’s denial of a motion for

summary judgment based on qualified immunity de novo. See Lukan v.

North Forest Indep. Sch. Dist., 183 F.3d 342, 345 (5th Cir. 1999).

The facts assumed by the district court are taken as true and are

viewed in a light most favorable to the Appellee. See Coleman v.

Houston Indep. Sch. Dist., 113 F.3d 528, 531-32 (5th Cir. 1997).

                                   DISCUSSION

     The district court granted and denied summary judgment to the

defendants in this case on a multitude of grounds. See Nancy Lee

Lim v. University of Houston, et al, No. H-99-2858, slip op. (S.D.

Tex. Feb. 21, 2001). All that is appealed is the denial of summary

judgment based on qualified immunity.

Jurisdiction

     Ordinarily       there   is   no   appellate   jurisdiction     to   review

immediately the denial of a motion for summary judgment. However,

“[u]nder     the     collateral    order     doctrine,   a   small   class    of

interlocutory orders that (1) conclusively determine, (2) important



                                         4
issues, which are separate from the merits of the action, and (3)

which would be effectively unreviewable on appeal from a final

judgment, are deemed ‘final’ for purposes of appeal.” Cantu v.

Rocha, 77 F.3d 795, 802 (5th Cir. 1996).

      “District court orders denying summary judgment on the basis

of   qualified   immunity       are    immediately    appealable   under    the

collateral order doctrine, notwithstanding their interlocutory

character, when based on a conclusion of law.” Coleman, 113 F.3d at

531. When a district court denies summary judgment because genuine

issues of material fact exist, as was done here, it makes two

distinct conclusions – that there are “genuine” issues of fact in

dispute, and that those issues are “material”. This court may not

review a factual conclusion that issues of fact are genuine, see

Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.

2d   773   (1996),   but   we    can   review   a    district   court’s    legal

conclusion that an issue of fact is material. See Bazan v. Hidalgo

County, 246 F.3d 481. 490 (5th Cir. 2001). A fact is “material” if

it “might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 106 S.Ct. 2505,

91 L.Ed. 2d 202 (1986). Thus we have jurisdiction to determine

whether the genuine issues of fact the district court found may

affect the outcome of the suit.

Qualified Immunity Test

      In determining whether a public official is entitled to



                                         5
qualified immunity, this court applies a two-step analysis. First,

we   “determine      whether   [Appellee]       charge[d]      conduct      violating

clearly established federal rights.” Chrissy F. by Medley v.

Mississippi Dep’t of Public Welfare, 925 F.2d 844, 851 (5th Cir.

1991). Second, we must determine whether Appellants’ “conduct was

objectively reasonable in light of clearly established law at the

time that the challenged conduct occurred.” Glenn v. Tyler, 242

F.3d 307, 312 (5th Cir. 2001).

Clearly Established Right

      We are first faced with the question whether the genuine

issues of fact found by the district court are material to whether

the Appellee has alleged the violation of a clearly established

federal right. See Foster v. City of Jackson, 28 F.3d 425, 429 (5th

Cir. 1994).

      The district court found no genuine issue of fact regarding

this first step of the analysis. It found that “[Appellants] do not

dispute that denial of tenure because of [Appellee’s] race or

gender,    or   in   retaliation   for       complaining       of   discrimination,

violates rights that were ‘clearly established’ during the relevant

period.”    Lim,     No.   H-99-2858,        slip   op.   at    22.    We   have   no

jurisdiction to review that factual conclusion. Thus, we turn to

the second step, whether the genuine issues of fact found by the

district court are material to whether Appellants’ actions were

objectively reasonable in light of clearly established law.



                                         6
Objective Reasonableness

       The second prong of the qualified immunity test is whether

Appellants’ actions were objectively reasonable in light of clearly

established law. See Anderson v. Creighton, 483 U.S. 635, 639, 107

S.Ct. 3034 (1987). Our inquiry is whether the genuine issues of

fact are material to whether a reasonable decision-maker could have

believed he was violating a person’s federally protected rights

under the circumstances. See id. at 641.

       Appellants    argue    that   reasonable         professors        could   have

disagreed on whether to vote for or against tenure. They put forth

as evidence the fact that the College Committee recommended against

tenure, and it is not alleged that every member of that committee

was driven by discriminatory animus, nor is it alleged that every

member of the College Committee was retaliating against Appellee.

Appellee responds with evidence suggesting that those committee

members,   while     not    themselves       acting     with   discriminatory      or

retaliatory animus, were influenced by Appellants, and thus cannot

be considered “reasonable” decision-makers for purposes of this

inquiry. This creates a genuine issue of fact. On review, we find

that    issue   of   fact    material        to   the   question     of     objective

reasonableness with respect to both alleged violations.

                                  CONCLUSION

       Because the genuine issues of fact found by the district court

are material to whether Appellants acted objectively reasonably in



                                         7
denying Appellee tenure, we AFFIRM the district court’s denial of

summary judgment and REMAND for further proceedings.




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