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
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Freddy Gould appeals the denial of his mo-
tion for summary judgment based on qualified
immunity under TEX. EDUC. CODE ANN.
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
(continued...)
*(...continued)
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.

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

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

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

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office as an appurtenance to the calling, but
followed the summons to the office as an inde-
pendent act. It lies therefore beyond the quali-
fied immunity creat ed solely by the fact that
Gould acted within his discretionary authority
in summoning Lookshin.
The result presumably would be different if
Gould had shown that he had touched Look-
shin, if at all, in pursuit of the legitimate
employment activity of breaking up a fight, or
catching Lookshin as she was about to fall to
the ground, or for any other legitimate
purpose. Gould, however, provides no
employment-related function that might justify
the alleged touching itself.
Gould asserts that this touchingSSthat the
entire incidentSSdid not occur. We take no
position on the relative credibility of either
party. We merely conclude that Gould has
provided us no reason to decide, at the
summary judgment stage, that the fact that his
employment allowed him to call employees to
his office created complete immunity for any
unrelated act that followed that summons, re-
gardless of the nature of that subsequent al-
leged act.
AFFIRMED.

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