white thank you may it please the court the former university officials here are entitled to qualified immunity because it was not clearly established that a non tenured lecturer had a constitutionally protected property right in his contract  renewal similarly the department chair here is immune from a tortious interference with contract claim because her actions surrounding the contract renewal within the scope of her employment will person the lecturer here and by extension the district court that case is a defacto tenure case was at issue there was a teacher at a junior college that did not have a formal tenure system and the teachers contract was silent on the issue of tenure given the circumstances the court held there that the teacher could point to other facts to show that she had a claim to defacto tenure like formally tenured teachers at other schools importantly however that case as it's been understood in this in this circuit is that it applies in the context of finding defacto tenure worries system of tenure does not already exist it is undisputed that the university of north texas here has a formal tenure system and that mr wilkerson did not have tenure and was not on the tenure track but their arguments a little more nuanced in that they're saying there's this intermediate category which were these term employees and he had a five year term imbed it is contract because the bylaws are corporate into it and so the snyderman analysis of lot well they're saying that they're making the claim for this sort of quasi tenure right in that way the issue is that this is up on the qualified immunity context and perry versus zimmerman has been interpreted consistently by this court as simply applying in a defacto tenure context there's the batter it in case where it says that perry versus it and what it stands for is that informal understanding may lead to a property interest in the absence of officially promulgated position and this to help the case a couple years after that said that if there is a formal tenure system in place that necessarily means that teachers that don't have tenure are not a continuing employment here at the university is expressed in many different ways that even even in the in the lecturer position that's at issue here even assuming if perry versus sentiment could be read to apply to that circumstance and we would hold  the qualified immunity context because because no court has has applied it it in that context in the other side has basically admitted this in the in their response brief that there is no case on point talking about these types circumstances that we should have qualified immediately but even there the contract with wilkerson here was not a five year term contract the contract provided that his was a temporary non tenure a bull one year appointment with a five year commitment to renew at the option of the university this was also backed up in various ancillary documents at the university at the college constitution made clear that renewals of term appointments are entirely at the option of the university the department bylaws said that there are there is no expectation of continued employment beyond the current appointment period so given those circumstances given the language in the contract given the language in the department bylaws in the college constitution it was reasonable for university administrators to believe that mr wilkerson did not have any constitutionally protected property interest in being reappointed the year after year you have a very good district judge here i'm sure you agree with that and  went wrong in in focusing too much on perry versus interment at a broad level of generality and losing scope of the fact that this is a qualified immunity case perry rich and you were brought to his attention they were brought to his attention yes and he said he discussed these various cases and he said it appears from some of these cases that perry versus interment had been i think he used the term abrogated or purported to be abrogated but it was his contention that a close reading of these various cases kept a broad reading of perry versus interment possible we believe in the qualified immunity context where things have to be spelled out with a high degree of particularities things need to be especially clear in the standard is whether it would be plainly incompetent for these administrators to believe this we think that in that context it's not clearly established from perry versus inurement that election or in this type of position had a cost to separate out the property right and you l i think even though even assuming that there were a clearly established constitutional property right to renewal there's an independent way that this court could could resolve that first issue and that is that although the university was not obligated to the process that wilkerson received was more than sufficient to meet the constitutional minima according to wilkerson's very own allegations he was afforded representation he availed himself of that in a in a grievance hearing he was able to call witnesses confront witnesses cross examine witnesses he could introduce an objective evidence he was able to make his case directly to the college president he had in essence after he received his non renewal letter that there was a eight first date a grievance committee that met where he received all of this process it went up to the college dean to be decided he was a able to meet the college dean and present his days and then went to another ad hoc committee a faculty from the university as a whole who were neutral and detached and who considered this who interviewed all these witnesses and then i went to the university provost there is no case certainly not a case that locus in his pointed to that said that any of that is even required all he is intitled to even again assuming that he had this right is the constitutional minimum of notice an opportunity respond and he had that beyond that on the second  issue which is the tortious interference with contract issue two to keep this in the same guys i think with where the district court went wrong here and it's not entirely clear to me why this was the case was that he did not discuss  hundred one one of six of the texas tort claims act this was presented to the district court i have a few record cites it was first raised to the district court and i believe a motion opposing a request to amend the complaint that was at two thirty five of the record most importantly one zero one one zero six was raised in the motion to dismiss itself that's it page two eighty five of the record and then it was reaffirm five of the record and what's important about one on one one of the six is that as a practical matter in the state of texas there isn't really much discussion about a common law official immunity anymore because that's a three pronged matter of there has to be a discretionary act it has to have been within the scope employment had to be within good faith under one zero one one of six for these types of tort claims the only issue is whether it was within the scope of employment one zero one one of six f which was quoted in full to the district court at those various pages so they gave you says that if a suit is filed against an employee of a governmental unit based on conduct with the within the employees within the scope of the employee's employment and it could have been product and the government under that chapter then upon a motion from the employee within thirty days if they don't amend to to name the governmental unit it must be dismissed against the employee this is talked about mostly in  quake case the frank to case goes on about the power of this and it really the practical matter of it is is that if the government employee for this type of tort claim and this is a tort claim it's covered by the at this has been decided by texas court if that employee were acting within the scope of his or her employment then as a practical matter it's if it's suing the government itself and because the state of texas has not way of immunity for this type of claim the claim essentially goes away we believe that the district court erred here in taking too granular an approach to the scope of employment issue this can be seen in lots of cases this is maybe best explained there's the city of lancaster case out of the texas supreme court this dealt with police officers in there the the court of appeals had held these were police officers who were speeding in the right driving fast in the streets in order to pursue a suspect and the argument was made well the police officers outside the scope of their employment to do these various reckless things they weren't supposed to do it wasn't justified in the circumstances and the court of appeals said well if that's true then it's outside the scope of their employment the texas supreme court reversed because it said that these police  duty in a squad car pursuing suspects and then it misperceives the scope of the of the scope of employment analysis to focus on whether the particular acts were condoned or authorized  would that still be within the scope is there anything it's really easy to see the ones that are outside completely the scope but i didn't know whether city of lancaster meant that even if you're speeding in your told you can't speed that's still within the scope i don't know what this is what the situation would be in that scenario i don't think that's the case here because the constitution of the department bylaws here do give glazebrook as a department chair an interim role in the hiring and firing process and making personnel decisions she's essentially she access akin to the c e o of the department the really the only issue here is one who hired him before she's the one who recommended his hiring yes yes it mentions in the it in the contract that's really at issue here it says you know this was elevate her concerns about whether to renew a contract to the college and university officials which is what she did here she communicated with university officials before sending out this letter the only issue is that if you were to follow some technical provisions in the department bylaws she also supposed to consult with the faculty and send up their recommendations so they are sort of two independent recommendations that go up but one of them is her so it's it's not the case that she is she's forbidden from doing this this is really  i think as far as what type of deviation is acceptable maybe the broadest one to me is this the jackson vs t s u case this was a southern district of texas case i think it was a judge harmon opinion and there you had two professors who were exams and that one of the professors legit assaulted the other in the issue there surely he did not have authorization to do that but the the courts surveyed texas law and the breath of this i hope of employment analysis and health that even there because he was proctoring examined that was part of his activities that that deviation still fell within his scope of employment and barred suit that was a one zero one one of six case not they can't pursue this relief against the university essentially forecloses sued because the university has not waived sovereign immunity is there another provision that would allow substitution chair and said that the department chairs actions are discretionary kind of looked at there at their role as a whole the district court didn't even address that issue it was never raised below probably because it was obvious it's a question area that but it would also require getting into good analysis that the law wrong in the sense that the good faith analysis focuses on whether a reasonably prudent official could have believed that his or her conduct was justified under the circumstances it is wilkerson's burden to prove that no reasonable department chair in that same position would have taken similar action and we don't think that the district court held him to that standard there were lots of issues in this case i think we discussed this in the brief about issues in the department about sexual harassment of communications for the and others about the need for confidentiality in these things that justified some of the factual circumstances that the district court relied on to keep this case alive but with that i'll just save my time for about  my place of what was what was inadequate about the process that was provided here came after the fact that the horse of the bar it has to be before during the academic year now might be called being barred or discharged but he wasn't george he just was a renewed maybe well i think you without a difference but it is a distinction well of course like i guess that you know i think he was only twelve months but i'm not sure jeff of saying that but i can't remember which one it was u here the things that we think support the fact that he had a five year agreement as opposed to a series of one year agreements and i realize there's language in a letter which they hang their hand on and say that's all there is to this contract that one sentence but we believe that these their own rules and regulations form a part of this contract and that they're obligated thought five of those and when you constr within that five years and there was never a renewal or a of a was never asked to sign another agreement which you would expect him to say if it if these were a series of one year his appointment is just as all these documents seem to say for one year and it's not ten years why does it only makes sense on that edge i don't think we have to argue that he's got tenure you agree doesn't have tenure  i'll think it i think he's got a five year contract if they bring everything says his contract and the vinyl was a pretty crystal clear it's a one year contract with the university's option to  it says that a pointless are for water multiple years that are in the pending departmental and you were view process and resource availability so that means he's got passed the review that he's doing good work which he did and whether the university has the resources available if they run out of resources or decide to drop that the courses that he teaches then he could be  could be through they could they could get out of the contract on that but they can't just say that we don't want you anymore and then it says there should be no expectation of continue to point to the on the end of the or something like that then that could could possibly affect this or serious violation of the university policy what else would if needed link it would be an assassin be something that's necessary that they valeted sexual harassment policy so if they have a system for for taking care of that can the department chair then say well i don't care what it says i'm going to terminate you any which is what she did you have a case applying six syndrom and so that the issue is beyond debate in a context where there is a tenure system in the employee claiming the property right says if it's a if it's a term of years contract there has to be a cost for the terminations it can't be a non renewal that's what we believe we have  on the second issue what's your best case he's he was not acting within the scope well making hiring him she went out on her own she didn't tell anybody in the department where it was case not the facts the on the scope of her employment just because she's department chair doesn't mean that she can fire anybody without going by at least some blips arash to the rules which she did she didn't and she some university rule we think it's a total average action in favor so you even recognize that those rules existed when she was called a moment by the members of the executive committee and the  even if the non was fired for non ringing it won't work whichever you want to call it he was then without hearing without knowing what he was being terminated for did you know  they said she lied that she wasn't cooperating style law so this is a case of a woman going so far beyond beyond the bounds of her employment at the time this incident happened so if if this was the back the incident the alleged sexual harassment incident then he did the basis for that did not exist because both just want to highlight a couple things this was not a term of years contract as that is normally understood i think that if this were a standard breach of contract action we could maybe quibble over what sort of rights are going on here in that but again i mean this is a qualified immunity case given the language it's in the contract in the constitutional by laws in the department by laws i mean at best there might be some unclear phrases  discussing various things but it was not unreasonable for administrators looking at language saying this is an option of the university to renew this entirely at your option there is no expectation of continued appointment and concluding that it could take this action and not renew him for a subsequent year importantly in terms of when the notice was provided for due process purposes this letter went out to present i believe it was july third or so in the summer before the next academic year the first committee that held its hearing i believe it issued its report just a few weeks later that also happened in july so all of this the process is already well underway before the next academic year starts as a practical wilkerson's renewed teaching contract wouldn't begin until i believe august twenty fifth of that here i don't think there's anything in the record that this this question came up of over whether he was paid for the full year and that i do know that his his offer letters all quoted him a nine month salary and i think that he could elect to have that spread out over twelve years over twelve months so that he wouldn't go without pay for three months but his his duties were  nine month duties that is clear in the record so all of this went on the process began in between the two academic years and just on the point of qualified immunity that there are there are two particular concessions  plaintiff knows no cases determine whether a contract for a term of years may be terminated in the middle of the term except for cause now it's our position that this contract was not terminate in the middle of the term that it was a temporary non tenure one year appointment but again even on his own theory in a qualified immunity context we think that that should be decided in favor of the administrators if there's there's nothing that the other side points to who bears the burden of showing that qualified me doesn't apply the other concession is on page twenty seven of the response that is that neither un t nor the college of arts and sciences appears to have an overall written policy regarding the terminations and non renewal of lecturers in general and so we think that's one where even if even under this very broad reading of perry versus interment evening nor in the various fifth circuit cases that have taken a narrow reading of that case i think this is just not a perry versus in your brain case in perry there was language in in the college constitution or the faculty handbook or something like that that said something very broadly to the effect that we'd like to think that all of our teachers have tenure if they do x y and z and the supreme court pointed to that when it was looking to other other things to establish a back to tenure here and the other side is  d it doesn't have that so this is really a  i don't believe so no i think there was only one lecturer of wilkerson's position i don't i don't even know how many other types of lecturers there were how many tenured gondry i don't think any of that is in the record i've never seen it  i think it just just to address it that this issue of poor judgment this is not this is what glazebrook said in her in her letter where she indicate the universe would not be renewing the contract this was fleshed out in the process that look at some receipt at the university it became clear early on that the that the poor judgment that they were pointing to not that they need to come up with a reason but one that they pointed to was related to his actions of having a relationship whether consensual or not and whether he had been appointed the director of graduate studies or not with a student there are policies sexual harassment policies that say that even consensual relationships between faculty and students are not allowed and this was not just the department chair this is the the dean cites this in his letter at the university provost cites this the detached neutral faculty panel in the ad hoc grievance committee all talk about a display of poor professional judgment  so that that is not the action of one person and that has been considered by many people i think you