IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 99-21109

Summary Calendar

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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 motion 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

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*

(...continued)

published and is not precedent except under the

limited circumstances set forth in 5TH CIR. R.

47.5.4.
2

§ 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, alleging 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 summaryjudgment 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 issues 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 claimof qualified immunity is

based solely on state law)).
3

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 fromthe statutoryimmunitycreated 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 aslong asthose acts are within the

scope of the employee’s authority and are taken in good faith.” It is the last element to

which Gould objects; he acknowledges that,

even under § 22.051, an act protected by qualified 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 immunity, 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 “incident 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 Lookshin in his officeSSwere “incident to or within

the scope of his duties” in that he is

authorized, as principal, to summonemployees

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 letters 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 legalstan-

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2

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dard harmless if conclusion unchanged).

3

See Jones v. Houston Indep. Sch. Dist., 979

F.2d 1004 (5th Cir. 1992); Anderson v. Blankenship, 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).
4

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 posttermination 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 ofthese cases, the alleged tort arose

as part of the employment-related acts: reviewing fitness and rendering employment decisions. In Anderson, meanwhile, the court

merely assumed, without consideration, that a

coach’sreport to a localnewspaper about another 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 claimof 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 ofspecificity and proscription,so the relevant

qualified immunity issues were not broached on appeal. 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

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4

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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 understanding of “scope of employment” from the

realm of vicarious liability to that of qualified immunity, 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 employmentrelated act of motivating his workers and

increasing productivity. It is impossible to imagine

to what employment-related purpose this alleged

groping could be ascribed. 
5

office as an appurtenance to the calling, but

followed the summonsto the office as an independent act. It lies therefore beyond the qualified 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 Lookshin, 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, regardless of the nature of that subsequent alleged act.

AFFIRMED.