Lookshin v. Aldine Indep School

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 99-21109 Summary Calendar _______________

PAMELA R. LOOKSHIN,

Plaintiff-Appellee,

VERSUS

ALDINE INDEPENDENT SCHOOL DISTRICT, ET AL.,

Defendants,

FREDDY GOULD,

Defendant-Appellant.

_________________________

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

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

* (...continued) * Pursuant to 5TH CIR. R. 47.5, the court has published and is not precedent except under the determined that this opinion should not be limited circumstances set forth in 5TH CIR. R. (continued...) 47.5.4.

§ 22.051(a). We affirm. defense to liability.”1

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

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

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

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

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

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

AFFIRMED.