Faculty Member's Liberty Interest Claim

Phelan asserts the trial court erred in granting summary judgment in Texas Tech's favor on his claim for
deprivation of a liberty interest. In support, Phelan contends his good name, reputation, honor, or integrity is at
stake (1) because of a Texas Tech interdepartmental e-mail sent in May 2005 from Eibeck to Norville containing
indirect references to him that may have referred to him as a "creep" and may have described him as exhibiting
"dysfunctional behavior"; (2) a second Texas Tech interdepartmental e-mail sent in August 2005 to approximately
eight Texas Tech employees indicating Phelan had exhibited "hostile behavior"; and (3) Norville's communication
to Phelan in a public restaurant that he would be terminated if he did not resign.

The law is clear in the employment context that a liberty interest is affected only when a plaintiff is terminated for
reasons which were false, stigmatizing, and published, such that his standing in the community is seriously
damaged or stigmatized to the extent he cannot seek or obtain other employment. Roth, 408 U.S. at 573-75, 92 S.
Ct. at 2707; Jones v. Houston Independent School District, 805 F.Supp. 476, 478 (S.D. Tex. 1992), aff'd, 979
F.2d 1004 (5th Cir. 1992). For a charge to be stigmatizing, it must be worse than merely adverse; it must be such
as would give rise to a badge of infamy, public scorn, or the like. Wells v. Hico Independent School District, 736
F.2d 243, 256 n.16 (5th Cir. 1984), cert. dism'd, 473 U.S. 901, 106 S.Ct. 11, 87 L.Ed.2d 672 (1985). The public
employer must make concrete, false assertions of wrongdoing on the part of the employee; Blackburn v. City of
Marshall, 42 F.3d 925, 936 (5th Cir. 1995) and, the infringement of employee's liberty interest can be found only
where the governmental agency has made or is likely to make the allegedly stigmatizing charges public in any
official or intentional manner, other than in connection with the defense of legal action. Kelleher v. Flawn, 761
F.2d 1079, 1087-88 (5th Cir. 1985).

To establish a claim for the deprivation of a liberty interest, a plaintiff must prove the following: (1) that the
plaintiff was discharged; (2) stigmatizing or defamatory charges were made against the plaintiff in connection with
the discharge; (3) that the charges were false; (4) that no meaningful public hearing was conducted
pre-discharge; (5) that the charges were made public; (6) that plaintiff requested a hearing in which to clear his
name; and (6) plaintiff's request was denied. Rosenstein v. City of Dallas, 876 F.2d 392, 395-96 (5th Cir. 1990).

Phelan contends Texas Tech's statements are damaging to his reputation in the academic community. If not
refuted, Phelan claims any possibility of his obtaining future employment in a major university will be foreclosed
and future advancement in his present position may also be hindered. Neither harm to reputation nor the
consequent impairment of future employment opportunities are constitutionally cognizable injuries. D. Vander Zee
v. Reno, 73 F.3d 1365, 1369 (5th Cir. 1996), citing Siegert v. Gilley, 500 U.S. 226, 233-35, 111 S.Ct. 1789, 1794,
114 L.Ed.2d 277 (1991). Neither is the loss of Phelan's freedom of choice in the job market a cognizable
constitutional injury. D. Vander Zee, 73 F.3d at 1369-70.

Phelan fails to produce any competent summary judgment evidence that these statements have seriously
damaged his standing and associations in the community or impaired his ability to obtain other employment. (7)
In fact, within weeks of attending a conference in Boston following his non-reappointment, Phelan accepted a
position with a prestigious engineering firm making substantially more money while working fewer hours. We do
agree that Phelan's non-reappointment might make him less attractive to other employers, but it would "stretch
the concept too far to suggest that a person is deprived of 'liberty' when he simply is not rehired in one job but
remains as free as before to seek another." Roth, 408 U.S. at 576, 92 S.Ct. at 2708. See also Perry v.
Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (U.S. 1972).

Phelan's constitutional claim also fails as a matter of law because the statements contained in the e-mails were
not stigmatizing. At the very least, a statement is not stigmatizing if it is not defamatory. Rosenstein, 896 F.2d at
395-96. To be actionable, the stigmatizing statements must be statements of fact, not opinion, and accuse the
employee of wrongdoing; Blackburn, 42 F.3d at 936, i.e., expose the employee to public hatred, contempt,
ridicule, or financial injury. Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex.App.-Corpus Christi 2005, no pet.).
However, statements may be false, abusive, unpleasant, or objectionable to the employee and still not be
defamatory in light of the surrounding circumstances. MKC Energy Investments, Inc. v. Sheldon, 182 S.W.3d 372,
377 (Tex.App.-Beaumont 2005, no pet.).

The question of whether an alleged defamatory statement is reasonably capable of a defamatory meaning is a
question of law. Musser v. Smith Protective Services, Inc., 723 S.W.2d 653, 654 (Tex. 1987). We construe the
alleged defamatory statement as a whole, in light of the surrounding circumstances, based upon how a person of
ordinary intelligence would perceive the statement. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex.
2000). Bearing in mind that an expression of opinion is protected free speech, we must also determine whether
the statements in question are merely expressions of opinion or actionable assertions of fact. Simmons v. Ware,
920 S.W.2d 438, 446 (Tex.App.-Amarillo 1996, no writ). If the complained-of statements are not reasonably
capable of defamatory meaning or are protected opinion, summary judgment was proper. See Double Diamond,
Inc. v. Van Tyne, 109 S.W.3d 848, 854 (Tex.App.-Dallas 2003, no pet.).

Reading Eibeck's May 19 e-mail as a whole in light of the surrounding circumstances, we do not find that her
indirect reference to Phelan as a "creep" or her description of his behavior as "dysfunctional" to be defamatory.
In the e-mail, Eibeck is critiquing a draft document being written by Norville. Her statements are: (1) "Too much of
the document sounds like 'I couldn't get along with the creep so I am firing him" and (2) "Make it clear that 1. He is
minimally performing on the job with examples and then 2. His actions reflect dysfunctional behavior with
examples." Both statements are indirect references to the behavior described and to Phelan.

Moreover, the descriptive terms on which Phelan bases his claim are opinions, not fact. (8)

See Musser, 723 S.W.2d at 655; Shaw v. Palmer, 197 S.W.3d 854, 857-58 (Tex.App.-Dallas 2006, pet. denied);
Roberts v. Davis, 160 S.W.3d 256, 262 (Tex.App.-Texarkana 2005, pet. denied); Columbia Valley Reg. Med. Ctr.
v. Bannert, 112 S.W.3d 193, 199 (Tex.App.-Corpus Christi 2003, no pet.). Because these statements do not
imply an assertion of fact, but rather were used in the popular sense as opposed to a clinical sense, we conclude
that the statements were expressions of opinion, not statements of fact. See Shaw, 197 S.W.3d at 858. We also
note Phelan produced no evidence these statements were stigmatizing other than the statements themselves
coupled with his legal conclusion--the statements were stigmatizing. Accordingly, we find these interdepartmental
e-mail statements were not stigmatizing as a matter of law.

Neither has Phelan produced competent summary judgment evidence to indicate that Texas Tech has disclosed
or is likely to disclose any document or communication related to his non-reappointment to the public in any
official or intentional manner. There is no evidence the interdepartmental e-mails were forwarded or released
outside Texas Tech. There is also no evidence that the e-mail from the Texas Tech employee to a third party was
forwarded or released to anyone beyond the recipient, or that the communication was an official or intentional
disclosure by Texas Tech. Under these circumstances, there was no publication. See Hughes v. City of Garland,
204 F.3d 223, 227-28 (5th Cir. 2000).

Finally, even if Norville broadcasted in the restaurant the fact that Phelan resign or be terminated, the statement
was true, or at the very least, substantially true. Simmons, 920 S.W.2d at 447. In addition, because the fact of
nonrenewal or termination of a non-tenured public employee by itself is not actionable as a deprivation of a
liberty interest, it follows that a disclosure by the public employer that the employee has been nonrenewed or
terminated by itself is not actionable either. Accordingly, Phelan's claim of deprivation of a liberty interest fails as
a matter of law and his fourth point of error is overruled.

Source Opinions:

Phelan v. Texas Tech Univ., No. 07-07-0171-CV (Tex. App. - Amarillo, Jan. 23, 2008, pet. denied) (Opinion by
Pirtle) (nonrevewal of nontenured faculty member, Texas Whistleblower Act claim, due process, no protected
interest in light of at-will employment, liberty interests in professional reputation)