     Case: 17-10874      Document: 00514469665         Page: 1    Date Filed: 05/11/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                    United States Court of Appeals

                                      No. 17-10874
                                                                             Fifth Circuit

                                                                           FILED
                                                                       May 11, 2018

THEOPHILUS K. UDEIGWE,                                                Lyle W. Cayce
                                                                           Clerk
              Plaintiff - Appellant

v.

TEXAS TECH UNIVERSITY; DOCTOR DAVID WEINDORF; DOCTOR
ERIC HEQUET; MICHAEL GALYEAN,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:16-CV-232


Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Theophilus Udeigwe appeals the district court’s
order dismissing his claims under Title VII of the Civil Rights Act pursuant to
Federal Rule of Civil Procedure 54(b) and its subsequent grant of defendant-
appellees’ motion to dismiss his remaining constitutional and state law claims.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10874
For the reasons stated below, we AFFIRM in part and DISMISS THE APPEAL
in part.
                                              I
       In 2012, Udeigwe, a black male professor, was offered a tenure-track
faculty position at Texas Tech University (“TTU”) in the Department of Plant
and Soil Science. The position was subject to a six-year tenure probationary
period. Udeigwe alleges that, despite his academic achievements, he was
informed in early 2015 by defendant Dr. Eric Hequet that he was “disliked” by
other faculty members. According to Udeigwe, the faculty members Hequet
identified—including defendant Associate Dean David Weindorf—were all
responsible for Udeigwe’s mid-tenure evaluation. Udeigwe’s evaluation was
apparently unfavorable, and he submitted a written rebuttal to his colleagues’
assessment of his performance. On March 18, 2015, he was informed by the
dean of his department, defendant Michael Galyean, that he would not be
reappointed to his position. The non-reappointment officially became effective
on May 31, 2015, but Udeigwe was granted a “terminal appointment” 1 for the
2015-2016 academic year.
       TTU’s     Operating      Policy   and      Procedure    (“OP”)     32.01    instructs
departments to have procedures for conducting a third-year review for
untenured faculty members. An appeal of a decision not to recommend tenure
on the basis of fairness or impropriety should be addressed to the Tenure
Advisory Committee. OP 32.02 contains guidelines for non-reappointment
appeals. Udeigwe challenged the non-reappointment decision as contrary to
TTU standards or procedures. The Tenure Hearing Panel concluded that “the
process was generally consistent with prior third year reviews,” and affirmed


       1Universities often offer junior faculty members who are not reappointed a “terminal”
contract to teach for one additional year before discharge. See Del. State Coll. v. Ricks, 449
U.S. 250, 252–53 (1980).
                                              2
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Udeigwe’s non-reappointment in late April 2016. TTU’s Interim President
approved the panel’s decision roughly one week later.
      On May 23, 2016, more than 300 days after being notified of his non-
reappointment, Udeigwe filed a charge against TTU, Galyan, Hequet, and
Weindorf with the Equal Employment Opportunity Commission (“EEOC”),
alleging that he had been subjected to discrimination, harassment, and
retaliation on the basis of race. The EEOC provided him with a right-to-sue
letter, and Udeigwe filed a pro se complaint in the district court against TTU.
TTU filed a motion to dismiss, and, after he retained counsel, Udeigwe was
granted leave for an extension of time to file an updated pleading. Udeigwe’s
first amended complaint added professors Weindorf, Hequet, and Galyean as
defendants. Defendants filed a partial motion to dismiss, and Udeigwe filed a
second amended complaint. 2 The complaint alleged that defendants: 1)
violated Title VII and the Texas Labor Code; 2) violated 42 U.S.C. §§ 1981 and
1983; 3) deprived Udeigwe of his due process rights under the federal and
Texas constitution 3; and 4) committed tortious interference with his
employment contract.
      On May 25, 2017, the district court granted defendants’ third motion to
dismiss, and entered judgment pursuant to Rule 54(b). In relevant part, the
Rule 54(b) judgment dismissed Udeigwe’s Title VII claims as time-barred. 4
After the district court denied Udeigwe’s motion to refile his improperly-filed
third amended complaint for failing to comply with the court’s limited




      2  Udeigwe’s second amended complaint is the relevant pleading for the purposes of
this appeal.
       3 As the district court noted, Udeigwe improperly pleaded his constitutional claims

separately from the alleged violations of §§ 1981 and 1983 as independent, free-standing
causes of action rather than through the appropriate statutes.
       4 The district court also rejected his Title VII claims on the merits.

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instructions for repleading, 5 it treated Udeigwe’s remaining claims as
abandoned and dismissed them with prejudice. Judgment was entered on July
11, 2017. Udeigwe filed his notice of appeal on August 4, 2017.
                                             II
       This court reviews the district court’s grant of a motion to dismiss under
Rules 12(b)(1) and 12(b)(6) de novo. Quinn v. Guerrero, 863 F.3d 353, 363 (5th
Cir. 2017). Under Rule 12(b)(1), the plaintiff bears the burden of demonstrating
that jurisdiction exists. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507,
511 (5th Cir. 1980). Where a “court lacks the statutory or constitutional power
to adjudicate the case[,]” dismissal for lack of subject matter jurisdiction is
appropriate. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d
1006, 1010 (5th Cir. 1998) (internal quotations omitted).
       To survive a motion to dismiss under Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotations omitted). A complaint will not “suffice if it tenders naked assertions
devoid of fuller factual enhancement.” Id. (internal quotations omitted). The
court accepts all well-pleaded facts as true and must consider those facts in the
light most favorable to the plaintiff. Stokes v. Gann, 498 F.3d 483, 484 (5th Cir.
2007).
                                             III
       Udeigwe’s notice of appeal was filed seventy-one days after the Rule
54(b) final judgment dismissing his Title VII claims based on his non-
reappointment was entered. Accordingly, his appeal of his Title VII claims is


       5 The district court noted that Udeigwe “brazenly ignored” and “deliberately chose not
to comply with the Court’s instructions,” which were explicitly limited to repleading, with
factual sufficiency, his constitutional claims through the appropriate statutes and repleading
his tortious interference claims against Weindorf, Hequet, and Galyean in their individual
capacity.
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                                       No. 17-10874
untimely and must be dismissed for lack of jurisdiction. See Bowles v. Russell,
551 U.S. 205, 209 (2007) (“[T]he taking of an appeal within the prescribed time
is ‘mandatory and jurisdictional.’” (quoting Griggs v. Provident Consumer Disc.
Co., 459 U.S. 56, 61 (1982))); see also Annamalai v. Comm’r of Internal
Revenue, 884 F.3d 530, 532 (5th Cir. 2018).
       Rule 54(b) allows a district court to “direct entry of a final judgment as
to one or more, but fewer than all, claims or parties” if the court “expressly
determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). “A
proper Rule 54(b) judgment is a final judgment for all purposes on the
adjudicated claims.” Meadaa v. K.A.P. Enters., L.L.C., 756 F.3d 875, 879 (5th
Cir. 2014) (internal quotation omitted). Rule 54(b) judgments must be appealed
within 30 days, and the time for appeal begins to run when final judgment has
been entered. See Fed. R. App. P. 4(a)(1)(A); Smith v. Mine Safe Appliance Co.,
691 F.2d 724, 725 (5th Cir. 1982). Since Udeigwe’s appeal was filed more than
30 days after the district court entered judgment, we dismiss his appeal of the
Rule 54(b) order disposing of his Title VII claims for lack of jurisdiction. 6
                                             IV
       Udeigwe claims that one or more of the individual defendants, in their
official capacities, deprived him of his rights under the due process clause of



       6  We note also that the district court correctly concluded that Udeigwe’s Title VII
claims were time-barred. Udeigwe had 300 days from the alleged discriminatory action—the
non-reappointment decision—to present his claim to the EEOC. 42 U.S.C. § 2000e-5(e)(1); see
also Ricks, 449 U.S. at 257–58. A claim not presented within 300 days is time-barred. See
Washington v. Patlis, 868 F.2d 172, 175 (5th Cir. 1989). Udeigwe did not file his EEOC
grievance until over a year after TTU informed him that he would not be reappointed.
Moreover, TTU’s decision to uphold the non-reappointment decision following Udeigwe’s
appeal is not a separate, cognizable adverse employment action. See Ricks, 449 U.S. at 261–
62; see also Thompson v. City of Waco, 764 F.3d 500, 505 (5th Cir. 2014). Accordingly, any
Title VII disparate treatment or retaliation claim based on the denial of the appeal must fail.
Lastly, Udeigwe named only Weindorf and Hequet in his Title VII claim for unlawful
harassment. Individual employees cannot be sued under Title VII in either their individual
or official capacities. See Smith v. Amedisys, Inc., 298 F.3d 434, 448–49 (5th Cir. 2002).
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                                 No. 17-10874
the Fourteenth Amendment. He maintains, however, that he is not alleging
that the denial of tenure and non-renewal of his employment contract form the
basis of his claim. Instead, Udeigwe contends that defendants deprived him of
his right to defend himself from false allegations, to be afforded a reasonable
opportunity to be heard, and to have unbiased decisionmakers in his hearing
process. To the extent that the pleadings and the briefing are unclear, the
panel understands Udeigwe to be alleging violations of his right to procedural
due process.
      At the outset, we note that Udeigwe has improperly raised his
constitutional grievances in a standalone claim under the Fourteenth
Amendment. His claim must be brought under § 1983, which provides the
private cause of action against state actors for constitutional violations. See,
e.g., Jordan v. Fisher, 823 F.3d 805, 810 (5th Cir. 2016). Moreover, “[t]he
requirements of procedural due process apply only to the deprivation of
interests encompassed by the Fourteenth Amendment’s protection of liberty
and property.” Whiting v. Univ. of S. Miss., 451 F.3d 339, 344 (5th Cir. 2006)
(quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 566–67 (1972)).
      As the Supreme Court has explained, “[t]o have a property interest in a
benefit, a person clearly must have more than an abstract need or desire for it.
He must have more than a unilateral expectation of it. He must, instead, have
a legitimate claim of entitlement to it.” Bd. of Regents, 408 U.S. at 577.
Generally, without concrete evidence establishing a reasonable expectation of
the benefit, there is no “property right in continued employment or an
assurance of tenure” under Texas law. See Spuler v. Pickar, 958 F.2d 103, 107
(5th Cir. 1992). Furthermore, “[e]stablishment of a formal tenure process
generally precludes a reasonable expectation of continued employment for non-
tenured faculty.” Id. (internal quotations omitted). It is undisputed that
Udeigwe was non-tenured and that his employment was subject to a six-year
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                                    No. 17-10874
tenure probationary period. He does not allege that TTU ever guaranteed him
a tenured position. Accordingly, Udeigwe did not have a property interest
protectable by procedural due process requirements.
      Similarly, Udeigwe has not demonstrated that he was deprived of a
cognizable liberty interest. The Supreme Court has recognized that, in very
limited circumstances, a state’s decision not to rehire an individual would be
subject to procedural due process constraints. See Bd. of Regents, 408 U.S. at
573. Specifically, “[w]here a person’s good name, reputation, honor, or integrity
is at stake . . . notice and an opportunity to be heard are essential.” Wisconsin
v. Constantineau, 400 U.S. 433, 437 (1971). If, however, the state “did not make
any charge against him that might seriously damage his standing and
associations in his community,” such as “that he had been guilty of dishonesty,
or immorality,” it is not a violation of his due process rights if they decline to
rehire him without affording him procedure. Bd. of Regents, 408 U.S. at 573.
Defendants have made no such charge against Udeigwe.
      Notably, Udeigwe was afforded the opportunity to rebut his negative
evaluation and appeal the non-reappointment decision. He was afforded more
process than he was entitled to. The district court properly dismissed
Udeigwe’s Fourteenth Amendment Claim.
                                           V
      Udeigwe next alleges that defendants deprived him of his “equal right to
work and/or” committed “retaliation due to protected speech because of his
race” in violation of 42 U.S.C. §§ 1981 and 1983. As a threshold matter, we note
that § 1983 is the exclusive remedy 7 for alleged violations of § 1981 by state
actors—§ 1981 does not create an independent cause of action. See Felton v.


      7  Section 1983 merely creates a cause of action through which individuals can
vindicate their rights guaranteed by the constitution. A “violation of § 1983” cannot be
asserted as a freestanding claim.
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                                        No. 17-10874
Polles, 315 F.3d 470, 482 (5th Cir. 2002), abrogated on other grounds by
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Udeigwe’s
pleadings do not make clear that he is properly pursuing his § 1981 claim
through § 1983, though he attempts to cure this deficiency in his brief on
appeal.     Regardless,       Udeigwe        does     not—and        cannot—identify         the
constitutional source of his “equal right to work.” Nor does he specify the
protected speech he claims to have engaged in or assert that he spoke out on a
“matter of legitimate public concern.” Connick v. Myers, 461 U.S. 138, 145
(1983) (internal quotation omitted); see also Givhan v. W. Line Consol. Sch.
Dist., 439 U.S. 410, 415–16 (1979). Thus, to the extent Udeigwe is basing his
cause of action on an alleged violation of the First Amendment, he fails to state
a claim for relief. See id. at 146–47. 8
                                               VI
       Udeigwe also claims that Weindorf, Hequet, and Galyean tortiously
interfered with his employment contract in violation of Texas state law. 9 To
state a claim for tortious interference, Udeigwe must establish: “(1) the
existence of a contract subject to interference, (2) the occurrence of an act of
interference that was willful and intentional, (3) the act was a proximate cause
of the plaintiff’s damage, and (4) actual damage or loss occurred.” Holloway v.
Skinner, 898 S.W.2d 793, 795–96 (Tex. 1995). “The second element of this cause
of action is of particular importance when the defendant serves the dual roles
of the corporate agent and the third party who allegedly induces the
corporation’s breach.” Id. at 796. Because a party cannot tortiously interfere
with its own contract, Udeigwe “must show that the defendant[s] acted in a


       8 Because we reject Udeigwe’s nebulous constitutional claims on their merits, we need
not resolve whether the individual defendants are entitled to qualified immunity.
       9 We assume this claim is brought against defendants in their individual capacities,

as they cannot be held liable for tortious interference in their official capacities. See Holloway
v. Skinner, 898 S.W.2d 793, 796 (Tex. 1995).
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                                  No. 17-10874
fashion so contrary to the corporation’s best interests that [their] actions could
only have been motivated by personal interests.” Id. Mixed motives will not
suffice. See ACS Inv’rs, Inc. v. McLaughlin, 943 S.W.2d 426, 432 (Tex. 1997).
Moreover, if TTU fails to complain about the individual defendants’ actions,
they have not acted contrary to TTU’s interests. See Powell Indus., Inc. v. Allen,
985 S.W.2d 455, 457 (Tex. 1998).
      Udeigwe does not allege facts sufficient to demonstrate that the
individual defendants were solely motivated by personal interests with respect
to their actions surrounding Udeigwe’s non-reappointment. Indeed, there is no
indication that any of them would “personally benefit from his absence” at all.
Newman v. Kock, 274 S.W.3d 697, 703 (Tex. Ct. App. 2008). Moreover, TTU
has never indicated that it disapproved of the individual’s evaluations of
Udeigwe or the non-reappointment decison; to the contrary, TTU explicitly
approved of both. Accordingly, the district court properly dismissed Udeigwe’s
tortious interference allegations for failure to state a claim.
                                       VII
      Lastly, Udeigwe claims that the district court abused its discretion in
denying him leave to refile his third amended complaint. Federal Rule of Civil
Procedure 15(a)(2) provides that courts “should freely give leave” to a party to
amend its pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). Whether
to allow a party to amend its complaint, however, “is left to the sound discretion
of the district court and will only be reversed on appeal when that discretion
has been abused.” U.S. ex rel. Willard v. Humana Health Plan of Tex., Inc., 336
F.3d 375, 387 (5th Cir. 2003). When the court cites valid reasons for denying
leave, such as “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously
allowed [or] undue prejudice to the opposing party by virtue of allowance of the


                                        9
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                                  No. 17-10874
amendment” it does not abuse its discretion. Id. (quoting Foman v. Davis, 371
U.S. 178, 182 (1962)).
      The district court allowed Udeigwe to cure deficiencies in his original
pleading by filing both a first and a second amended complaint. Udeigwe was
represented by counsel when filing both amended documents. After dismissing
his Title VII claims in the Rule 54(b) judgment, the district court gave Udeigwe
yet another chance to replead with sufficient factual sufficiency his
constitutional claims through the appropriate statute and to replead his
tortious interference claims against defendants in their individual capacities.
      In denying Udeigwe’s motion to refile his third amended complaint, the
court noted that, rather than follow the court’s clear instructions, Udeigwe
reasserted multiple claims that had already been dismissed in its Rule 54(b)
motion as time-barred or meritless. Moreover, the district court was clear that
Udeigwe had permission to amend only as to his constitutional and tortious
interference claims. The district court stated that Udeigwe “brazenly ignored
the Court’s instructions . . . regarding the extent of his leave to amend, and the
complaint should therefore not be accepted.” Given the circumstances and
Udeigwe’s persistent noncompliance, the district court did not abuse its
discretion in denying Udeigwe leave to refile his third amended complaint.
                                      VIII
      For the foregoing reasons, we AFFIRM in part and DISMISS THE
APPEAL in part.




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