## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 99-21109 Summary Calendar

_______________



### P AMELA 

### R. L OOKSHIN



### ,

Plaintiff-Appellee,

VERSUS



### A LDINE 

### I NDEPENDENT 

### S CHOOL 

### D ISTRICT



### , ET AL



### .,

Defendants,



### F REDDY 

### G OULD



### ,

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

immunit y under T EX

. E DUC

. C ODE A NN

.

* Pursuant to 5 T H C IR

. R. 47.5, the court has

deter mined that this opinion should not be (continued...) * (...continued)

p ublished and is not precedent except under th e limite d circumstances set forth in 5 T H C IR

. R.

47.5.4.2

§ 22.051(a). We affirm.

I.

Pamela Lookshin was a teac her’s aid at

S t ehlik 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

t h at the culprit was Lookshin, that she was warned that her continued employment depended on ceasing to remove fur ther sl op, and th at , when she continued to remove slop

later that same day, she was, following proper procedure, terminated.

Lookshin con t ests that the slop-stealing

incident is misd escribed and insists that she

was terminated because she thwarted Gould’s

unwitnessed sexual advances. She sued, alleging seven cou nt s, including defamation,

national origin discrim i nation, title VII violations, Te xas workers’ compensation

statute violation, assaul t, battery , and

intentional inflict

ion o f 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 immunit y from the remaining counts under § 22.051(a).

II.

Loo k shin questions whether we have appellate jurisdiction, arguing that we may not
exercise jurisdiction over the appeal of a claim

of qualified i mmunity based solely on state

law. Our precedent directs otherwise. “We

have previously held tha t an order denying qualified immunit

y under state la w is immediately appealable as a “final decis ion,” provided that “the state’s doctrine of qualified

immunit y, like the federal doctrine, provides a

true im munity from suit and not a simple defense to liability.” 1

Our jurisdi c tiion over qualified immunit y appeals is limited:

District court orders denying s ummary jud gment on the basis of qualified

immunit y are immediately appealable

under the collateral order doctri n e, notwithstandi ng their interl ocutory character, when

based on a conclusion

o f law. S ee Mitchell v. Forsyth

, 472

U.S. 511, 530 (1985). In contrast, such

orders are not immediately appealable if they are based on sufficien cy of the

evidence. S ee Johnson v. Jones , 515

U.S. 304, [319-20] (1995). Therefore,

orders denying qualifi ed immunity are immediately appealable only if they are predicated on pure conclusio ns o f law,

and not if a

"genuine issue of material

fact" precludes summa ry 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 appea led here implicate questions of interpretation and application of relevant law, they are properly before us.

III.

A.

Gould complains t hat the di stri ct court
“erred when it applied the wrong standard in evaluating [his] qualified immunity defense.”

He notes that t he 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)).3

elements of quali f

ied immunit y, on City of

Lancaster v. Chambers

, 883 S.W.2d 650, 653 (Tex. 1994), which discus sed o fficial

immunit y, derived from the co mmon law,

rather than immunit

y derived specifically from § 22.051(a). He correctly states that “official

immunit y is a common law d octri ne . . . distinct from the statutory immunit y created by § 22.051.” D owning v. Brown

, 925 S.W.2 d 316, 319 (Tex. App. 

### SS

Amarillo), 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 immunit

y for acts within

the scope of

their duties as long as those 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 immunit

y must b e “within the scope of

the employee’s authority” as that elem ent i s discussed by

the di stri ct court throughout i ts order; he argues, howeve r, that statutory i m

munit y, unlik e common-law based immunity,

does not require t he 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 “inc ident to or within the scope of [his] dutie s,”

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,

n ever mentioned again or made part of its analysis, is harmless. 2 B. Gould argues, alternatively, that he should

have been granted qualified immunit y because

the actions he allegedly took 

### SS groping Lookshin in his o ffice 

### SS

were “incident to or within

t he 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 o f a principal’s authority. It is what allegedly happened a fter the summons which she protests.

G o uld contends, though, that because the alleged groping followed a sanctioned

summons, he is immune to suit based on it.

He cites a wealth of inapposit e 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 o fficials had libeled him in let

t ers written to one another evaluating his workplace behavi or. S ee Jones

, 979 F.2d

at 10 05, 1006. We held that “circulation of

memoranda within [the school district] regarding Jones’s fitness for employment was wit hin the scope of the defendant s’

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 I

ndep. 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. SS

C orpus Christi 1994, no writ); Williams v. Conroe Indep. Sch. Dist.

, 809

S.W.2d 954 (Tex. App. SS Beaumont 1991, no writ).4

employment and involved the exercise of judgment and discretion. T he individual

defendant s therefore are immune from

liabilit y.” Id. at 1007.

Likewise, in Willi ams , a school bus driver

sued after he was terminated, allegedly for having propositioned a student, and was

denied rehiring. S ee Williams

, 809 S.W.2d

at 956. He sought relief for the state law

c laims of defamation and i.i.e.d. I d. at 957.

The court rightly found that “decid[ing] not to
rehire Williams[,]

. . . o fficiat[ing] at a posttermination hearing held at Williams’ request,”

and acting as “one of the witnesses at that

he aring” qualified as acts arising out of the scope of employment, because these supervisory employees were required to make employm ent decisions about individual employees. Id. at 956, 957-58.

In both of these cases, the alleged tort arose

as part of

t he employment-related acts: reviewing fitness and rendering employment decisions. In A nderson

, meanwhile, the cour t merely assumed, without consideration, that a coach’s report to a local newspaper about another coach’s recruiting violations came within

the scope of employment. S ee Anderson, 790

F. Supp. at 696. The scope-of-employment

aspec t of the qualified immunity was apparently neither specifically consid ered nor challenged. 4 Gould has based his entire claim of qualified

immunit y on the fact that it is wi t hin 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 T he other cases cited by Gould are entirely

irrelevant. In C ox , the claims were dismissed fo r

want of specificity and proscription, so the relevant qualified immunity issues were not broached on appeal. S ee 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 d ifferent standard. S ee 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 Southw est, Inc. v. Bruce , 998 S.W.2d 605 (Tex. 199 9), four employees claimed that a supervisor

constantly harassed and intim ida ted them.

T he 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, [th e supervisor] repeatedly yelled, screamed, cursed, and even “charged” at them. In addition, he intentionally humiliated a nd embarrassed the employees.

Id. at 608-09. A jury found this behavior to fit

within the “scope of the supervisor’s employment”

for vicar ious liability purposes. We are loath to

assume that Texas courts would transfer their understandi ng of “scope of employment” from therealm of vicarious liability to that of qualified immunity, given the radically different rationales for

the “scope of empl oyment” 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 ac t of motivating his workers and increasing productivity. It is impossible to imagine

t o what employment-related purpose this all eged groping could be ascribed.5

office as an appu rt enance to the calling, but

followed the summons to the office as an independent act. It lies therefore beyond the qualified immunit

y 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 sh own 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 assert s that this touching 

### S S that the

entire incident 

### SS

did not occur. We take no position on the rela t ive credibility of either

party. We merely conclude that Gould has provided us no reason to deci de, at the

summary judgment stage, that the fact that his employment allowed him to call employees to
h is office created complete immunit y fo r any unrelated act that followed that summons, regardless of the natur e o f that subsequent alleged act.

AFFIRMED.