IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40469

SUSAN MILLS, A Tenured Faculty Member, University of Texas -

Brownsville, 

 Plaintiff–Appellant,

v.

JULIET GARCÍA, In her Official Capacity; ALAN F. J. ARTIBISE, In his 

Official Capacity; DANIEL HEIMMERMAN, In his Official Capacity; 

UNIVERSITY OF TEXAS AT BROWNSVILLE, a Domestic Political 

Corporation, 

 Defendants–Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:13-CV-68

Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Plaintiff–Appellant Susan Mills was a tenured English professor at the 

University of Texas at Brownsville (UT-Brownsville). When it was first

recommended that Mills be terminated, an independent faculty hearing 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 8, 2015

Lyle W. Cayce

Clerk

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committee unanimously found that the initial decision to terminate Mills “was 

arbitrary and unreasonable” and recommended that Mills be retained. 

Nonetheless, the President of UT-Brownsville rejected this recommendation 

and terminated Mills. Mills sued, asserting that the decision to terminate her 

tenure constituted an arbitrary deprivation of her property interest as a 

tenured professor. The district court granted UT-Brownsville’s motion for 

summary judgment on Mills’s substantive due process claim. Because there is 

a genuine dispute of material fact whether UT-Brownsville’s President failed 

to consider a serious miscalculation in deciding to terminate Mills, we reverse 

the district court’s grant of summary judgment and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Susan Mills was a tenured professor in the English Department at UTBrownsville with English M.A. and B.A. degrees. When UT-Brownsville ended 

its partnership with a local community college, university officials expected a 

decline in enrollment and initiated a “reduction in force” that ultimately 

resulted in Mills’s termination.

A. The Reduction-in-Force Process

To facilitate the reduction in force,1 the President of UT-Brownsville, 

Defendant–Appellee Dr. Juliet García, appointed faculty members from each 

department to serve on departmental review committees. These committees 

reviewed the credentials of faculty members and recommended which faculty 

should be terminated.

The task fell on the departmental review committee to recommend four 

English Department faculty members for termination. The English 

Department had twenty-one faculty members and space for only seventeen 

under the reduction in force. Under the rules and regulations established by 

 

1 This process and its guidelines were referred to as the “Provost’s Charge.”

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the Executive Vice Chancellor for Academic Affairs for the University of Texas 

Regents in accordance with the Southern Association of Colleges and Schools 

(SACS),2 the committee favored faculty with terminal postgraduate degrees 

(most commonly PhDs) in the fields in which they taught.

Importantly, the protocol established an overall preference for disciplinespecific degrees over education degrees. As a policy, Ed.D. degrees (short for 

Doctor of Education) would not be considered “terminal degrees in the 

discipline or in a related discipline . . . outside of the College of Education.” The 

SACS protocol also required at least eighteen hours of postgraduate 

coursework within the discipline taught to qualify as a teacher in that 

discipline—i.e., to teach English, a professor must have completed at least 

eighteen hours of English postgraduate coursework.

Essentially, the departmental review committee sorted the faculty 

members by their education into categories numbered from one to seven—the 

first level containing the most qualified faculty members assured of being 

retained, and the seventh containing the least qualified faculty recommended 

for termination. The committee recommended that all fourteen of the faculty 

with English, rhetoric, or linguistics PhDs be retained (levels one and two), as 

well as one professor with a PhD “minor in English” (level three). Thus, fifteen 

slots were filled by professors with PhDs, leaving two remaining slots. The 

committee also sorted all three of the faculty without postgraduate English 

degrees into level seven and recommended that they be terminated—this 

group included Mary Therese Gallegos, as elaborated further below. That left 

three faculty members in the middle—with English master’s degrees, but 

without English PhDs—for two slots; one would be recommended for 

 

2 Under Texas law, the UT Regents’ rules and regulations have the force and effect of 

law. Foley v. Benedict, 55 S.W.2d 805, 808 (Tex. 1932).

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termination. These three individuals were Mills, Elizabeth Vidaurri, and Amy 

Frazier.

B. Mills or Gallegos?

As discussed further below, Frazier voluntarily left, and Gallegos was 

recommended for retention; so this appeal boils down to the question whether 

the UT-Brownsville officials arbitrarily preferred Mary Therese Gallegos to 

Mills in violation of substantive due process. This question turns on a serious 

miscalculation of Gallegos’s relevant credentials. Mills has a B.A. in English 

and an M.A. in English, both from UT-Brownsville; whereas Gallegos has an 

Ed.D from Harvard University and an M.A. in secondary and adult education 

from the University of New Mexico. Thus, under the protocol, Gallegos did not 

initially receive preference for her postgraduate education degrees, and the 

committee placed her in level seven—recommending her for termination.

Within level six, the committee sorted the three professors with English 

master’s degrees. The committee deemed all three “good teachers.” Because 

Vidaurri served as department coordinator for dual enrollment, the committee 

concluded that she had distinguished herself positively from the other two 

candidates. As between Frazier and Mills, the committee concluded that,

because Frazier received an “Exceptional Merit” award in 2009 that Mills had 

not received, Frazier should be ranked ahead of Mills. That left Mills as the 

eighteenth-ranked English Department professor, so the committee 

recommended that Mills be terminated. As the only terminated professor with 

a postgraduate English degree, Mills was ranked the highest among the faculty 

recommended for termination. Mills was later rehired by UT-Brownsville to a 

non-tenured position as a lecturer.

1. The Minority Recommendation

Dr. Charles Dameron, the English Department chair, dissented from the 

committee’s recommendation and filed a minority recommendation. In that 

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recommendation, he expressed his view that Gallegos should be retained over 

anyone within level six. He justified this position based on Gallegos’s 

education, experience, and value as “a workhorse in the department.”

Dameron noted that there was an issue whether Gallegos’s credentials 

(namely, her lack of a postgraduate English degree) qualify her to teach 

undergraduate English at all under the SACS protocol—which, as noted, 

requires at least eighteen postgraduate hours of study in the discipline taught. 

Dameron explained that Gallegos’s postgraduate “transcripts show that 

she has at least 24 graduate hours in linguistics and writing courses, so,” in 

Dameron’s view, “she meets the SACS minimum requirement of 18 hours that 

all UTB faculty must meet.”

As explained below, this last point turns out to be false. Based on this 

misimpression, Dameron recommended that Gallegos be included in Priority 

Level Five and retained over “the three M.A.-qualified faculty in Priority Level 

Six.” Defendant–Appellee and UT-Brownsville Provost and Vice President for

Academic Affairs3 Dr. Alan Artibise agreed with the minority recommendation

and instructed the departmental review committee to “consider Mary Gallegos’ 

Master of Arts degrees in Secondary/Adult Teacher Education and Elementary 

Education to be ‘in the teaching field’” of English. The committee accordingly

submitted a second recommendation—this time, categorizing Gallegos as level 

five and recommending that she be retained, and that Frazier and Mills be 

terminated. President García adopted this recommendation.

2. Frazier Resigns and Mills Appeals

Frazier opted to accept a voluntary buyout, but Mills appealed the 

termination decision.4 Thus, Mills was next in line after Gallegos for the 

 

3 The Provost is the chief operations officer at UT-Brownsville, and the Vice President 

for Academic Affairs is the chief academic officer.

4 ROA.2164.

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coveted seventeenth slot, as the faculty hearing committee’s report notes.5

The hearing committee heard argument and received testimony from 

Mills, Provost Artibise, and minority-recommendation author Dameron, 

among others. The hearing committee found that Mills had proven by a greater 

weight of the evidence “that the decision to terminate her was arbitrary and 

unreasonable.”6 Specifically, the committee’s report noted that Dameron 

testified “that he had double counted the [linguistics] courses and that there 

were only 9 hours” of pertinent English coursework in Gallegos’s postgraduate 

transcript. The committee found that the “reassignment of Mary Therese 

Gallegos to Level 5 was unreasonable” to a professor who has a master’s 

degrees in the teaching discipline, and that, because Gallegos does not have a 

master’s degree in English, she should have been placed in level seven as 

initially recommended. The committee also found that because “Amy Frazier 

[was] taking severance, Susan Mills now becomes eligible for nontermination,” and it unanimously recommended to the president that she 

“accept Professor Susan Mills’[s] appeal of her termination.” 

The president rejected the faculty hearing committee’s recommendation 

and denied Mills’s appeal.

* * *

 

5 This is a point of dispute. Mills points to the faculty hearing committee’s report 

saying so. By contrast, the district court and UT-Brownsville point to testimony that Mills’s 

placement on the list would not matter—she would have been terminated either way. 

On summary judgment, we must take all reasonable inferences in favor of Mills, the 

nonmovant. See Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264 (5th Cir. 1991) 

(“Because factual disputes may not be resolved on motion for summary judgment, the 

plaintiff need not offer all of the evidence tending to support its case, only enough evidence 

‘from which a jury might return a verdict in [its] favor.’” (alteration in original)). Therefore, 

we conditionally infer that Mills would have obtained the seventeenth slot but for Gallegos’s 

placement in level five. 6 See Univ. of Tex. Sys. Bd. of Regents Rules & Regulations 31008, § 4.4 (“The 

institution has the burden to prove good cause for termination by the greater weight of the 

credible evidence.”).

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Mills sued the UT-Brownsville officials and the university in federal 

court, asserting claims for deprivation of procedural and substantive due 

process in violation of the Fourteen Amendment under 42 U.S.C. § 1983,

seeking injunctive relief. After an abbreviated period for discovery, the district 

court adopted the magistrate judge’s recommendation to convert UTBrownville’s motion to dismiss into a motion for summary judgment, and 

granted summary judgment to the Defendants–Appellees. Mills timely 

appealed only her substantive-due-process claim.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had federal-question jurisdiction under 28 U.S.C. 

§ 1331. We have jurisdiction to review the district court’s final judgment. 28 

U.S.C. § 1291. We review a grant of summary judgment de novo. Coleman v. 

Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). Summary judgment 

is appropriate if “the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a). We view the facts in the light most favorable to the nonmovant 

and draw all reasonable inferences in the nonmovant’s favor. Coleman, 113 

F.3d at 533.

III. DISCUSSION

The sole issue on appeal is whether there is a genuine dispute of material 

fact that UT-Brownville deprived Mills of her property interest in continued 

public employment in violation of substantive due process.7 To prevail on a 

claim for violation of substantive due process in the public-employment 

context, the plaintiff must show “(1) that [s]he had a property interest/right in 

[her] employment, and (2) that the public employer’s termination of that 

 

7 Mills abandoned the procedural due process claim that she asserted in the district 

court.

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interest was arbitrary or capricious.” Moulton v. City of Beaumont, 991 F.2d 

227, 230 (5th Cir. 1993). Here, it is undisputed that as a tenured English 

professor, Mills had a property interest in continued employment and that she 

has abandoned her procedural-due-process claim. Thus, the sole issue is 

whether UT-Brownsville’s decision was substantively arbitrary or capricious.

A. Substantive Due Process Legal Standard

A public employer’s decision to terminate a tenured employee’s property 

interest in continued employment is arbitrary or capricious if the decision “so 

lacked a basis in fact” that it may be said to have been made “without 

professional judgment.” Texas v. Walker, 142 F.3d 813, 819 (5th Cir. 1998). The 

terminated employee “must show that the decision was ‘made without a 

rational connection between the known facts and the decision or between the 

found facts and the evidence.’” Lewis v. Univ. of Tex. Med. Branch, 665 F.3d 

625, 631 (5th Cir. 2011) (per curiam) (quoting Meditrust Fin. Servs. Corp. v. 

Sterling Chems., Inc., 168 F.3d 211, 215 (5th Cir. 1999)).

The standard for establishing a substantive due process violation is 

“demanding.” Spuler v. Pickar, 958 F.2d 103, 107 (5th Cir. 1992). This is so 

because “a federal court is generally not the appropriate forum in which to 

review the multitude of personnel decisions that are made daily by public 

agencies.” Honore v. Douglas, 833 F.2d 565, 569 (5th Cir. 1987) (citing Bishop 

v. Wood, 426 U.S. 341 (1976)). 

That said, we have also observed that “[t]his measure of judicial restraint 

. . . does not require slavish deference to a university’s arbitrary deprivation of 

a vested property right.” Id. (collecting cases). Our decision in Honore

illustrates the application of the substantive due process standard on summary 

judgment. In Honore, the Thurgood Marshall School of Law of Texas Southern 

University effectively terminated an associate law professor who had been 

vocally critical of the dean, even though the faculty committee had 

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unanimously recommended that he be granted tenure and retained. Id. at 567. 

The trial court granted the public employer’s motion for summary judgment, 

and we reversed. Id. at 568, 570. We explained that the law professor was an 

adequate teacher who published legal scholarship, started a moot court 

competition and a law review, and chaired faculty committees as well as 

started a research and writing program. Id. at 569. “This testimony[] alone,” 

we reasoned, “creates a genuine issue of material fact as to the arbitrary and 

capricious nature of [his] dismissal.” Id. Therefore, we held that the professor 

was “entitled to a jury resolution of his substantive due process claim.” Id.8

B. Analysis

Applying the substantive-due-process legal standard, we hold that had 

the final decision maker, President García, fully considered that Dameron 

erroneously double-counted Professor Gallegos’s coursework and nonetheless 

decided to trust her department chair’s minority opinion, the decision to 

terminate Mills would not have been arbitrary or capricious as a matter of law. 

However, because that material fact is subject to genuine dispute, the decision 

of the district court must be reversed. It is undisputed that Gallegos’s 

transcript only reflected nine hours of postgraduate English coursework, and 

that eighteen hours of postgraduate English coursework are required to teach 

undergraduate English at UT-Brownsville. It is also undisputed that Dr. 

 

8 Because Mills sues the UT-Brownsville officials in their official capacities for 

prospective injunctive relief—rather than damages—there is no qualified-immunity issue. 

Cf. Walker, 142 F.3d at 819 (affirming district court’s decision to grant qualified immunity to 

the university officials on summary judgment because the university’s decision to terminate 

him did not so lack “a basis in fact that the[] decision to terminate him was arbitrary, 

capricious, or taken without professional judgment”).

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Dameron’s recommendation, on which García based her decision to terminate 

Mills, stated, erroneously, that Gallegos had eighteen hours.9

There is a genuine issue of fact, however, about whether García was 

aware of and appreciated the error when making her termination decision. At 

the preliminary-injunction hearing in May 2013, García was questioned about 

the faculty hearing committee’s findings and provided conflicting answers. On 

the one hand, to the question “Did . . . anybody indicate to you that Dr. 

Dameron . . . admitted that the amount of hours held by Dr. Gallegos was 

problematic?” García responded “We did not discuss that, no.” On the other 

hand, García appeared to correct herself with the next question and answer: 

“But you did review that yourself, . . .?” García responded: “I knew that. Yes, I 

did, I’m sorry.”

At her deposition, García provided further conflicting testimony, saying 

that she did not recall “reading the comment made by the appellate committee 

that, ‘Dr. Dameron also said putting Gallegos in Level 5 is problematic.’” Nor 

did she recall that the appellate opinion explained that, “‘[o]n the matter of 

Mary Gallegos qualifying for Level 5, Dr. Dameron said, ‘Strict letter of the 

law, there is a concern,’” referring to Gallegos’s lack of postgraduate English 

coursework.

Viewing this evidence in the light most favorable to Mills, as we must, 

we conclude a factfinder could reasonably infer that President García failed to 

consider evidence, available to her, that Dameron’s minority recommendation 

was fundamentally flawed. See Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 

619 n.2 (5th Cir. 1994). A factfinder, therefore, could reasonably conclude that 

García’s decision to terminate Mills was made “without professional 

 

9 At her deposition in November 2013, García testified that Dr. Dameron’s minority 

recommendation “weighed heavy” in her deliberation “because of his broad-based experience 

both as a department chair, as a dean and as vice president for academic affairs.”

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judgment,” Walker, 142 F.3d at 819, or “without a rational connection between 

the known facts and the decision or between the found facts and the evidence,” 

Lewis, 665 F.3d at 631 (internal quotation marks omitted); see also Walker, 142 

F.3d at 819 (decision is arbitrary if it “so lacked a basis in fact”).

UT-Brownsville argues that “due process is not violated when an appeal 

hearing is held before an advisory panel whose recommendations are 

ultimately rejected.” UT-Brownsville’s argument purports to rely on our 

decision in Honore, 833 F.2d at 568. UT-Brownsville’s reliance on Honore is 

misplaced because Honore stands for the contrary proposition. Though UTBrownsville correctly points out that the faculty committee in Honore

“unanimously recommended tenure,” a recommendation that was rejected by 

the university president, we ultimately reversed summary judgment for the 

university on the professor’s substantive-due-process claim. 833 F.2d at 568–

69. UT-Brownsville conflates our decision upholding summary judgment as to 

the plaintiff’s procedural due process claim, id. at 568 (“We find no merit in 

Honore’s claim of a denial of procedural due process.”), with our decision 

reversing summary judgment on the substantive due process claim, id.

(“[D]espite this finding of procedural adequacy, we do not agree with the trial 

court’s rejection of the substantive due process claim.”). As in Honore, here, the 

faculty hearing committee recommended that Mills be retained and that 

Gallegos be terminated, and there exists a genuine dispute whether President 

García rejected its recommendation without considering its express finding 

that Dameron had double-counted Gallegos’s coursework. This evidence, taken 

together with Mills’s academic credentials and unblemished performance 

evaluations, “creates a genuine issue of material fact as to the arbitrary and 

capricious nature of [Mills’s] dismissal.” See id. at 569. As in Honore, Mills is 

“entitled to a jury resolution of [her] substantive due process claim.” See id.

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IV. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s decision 

granting summary judgment on Mills’s substantive due process claim and 

REMAND for further proceedings consistent with this opinion.

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