Case 5:12-cv-00218-C Document 41 Filed 05/15/13 Page 1 of 44 PageID 930
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS LUBBOCK DIVISION
JAMES C. WETHERBE, PH.D. § § CIVIL ACTION NUMBER PLAINTIFF § § V. § § BOB SMITH, PH.D., INDIVIDUALLY § 5:12-cv-00218-C AND IN HIS OFFICIAL CAPACITY § AND LAWRENCE SCHOVANEC, PH.D., § INDIVIDUALLY AND IN HIS § OFFICIAL CAPACITY § § DEFENDANTS § § JURY DEMANDED
PLAINTIFF’S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT AND BRIEF IN SUPPORT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE, SAM R. CUMMINGS:
Plaintiff James C. Wetherbe, Ph.D. (“Plaintiff”), files this Motion for Leave to File Third
Amended Complaint, and would respectfully show the Court as follows:
1. Plaintiff filed his Second Amended Complaint [Doc. 36] on April 22, 2013.
2. Defendants filed their Rule 12(b)(6) Motion to Dismiss Plaintiff’s Second
Amended Complaint [Doc. 38] on May 6, 2013. Pursuant to Local Rule 7.1(e), Plaintiff’s response and brief in opposition is due on May 31, 2013.
3. According to the Scheduling Order [Doc. 9], the deadline for motions to amend the pleadings is May 15, 2013.
4. Given the multiple amendments to the pleadings, Plaintiff is reluctant to move the
Court to allow another amendment. However, newly discovered evidence compels this request.
Specifically, on May 14, 2013, in a strategic planning meeting of the entire faculty and staff of
PLAINTIFF’S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT Case 5:12-cv-00218-C Document 41 Filed 05/15/13 Page 2 of 44 PageID 931
the Rawls College of Business, Plaintiff learned that he is being deprived of his position of
Associate Dean of Outreach. Plaintiff learned this information when an organizational chart was shown as part of a PowerPoint presentation. Plaintiff’s position was not on the organizational chart. Dean Lance Nail stated that the new organizational structure had been approved by
Defendant Lawrence Schovanec.
5. Following the meeting, Plaintiff sent an email to Dean Nail to confirm his loss of
the Associate Deanship. Dean Nail also confirmed that Plaintiff will no longer be a member of
the Leadership Council, the Coordinating Council, and the Chief Executive Roundtable (CXR).
A copy of the email is attached as Exhibit A.
6. A copy of the proposed Third Amended Complaint is attached as Exhibit B.
7. Unless the opposing party can show prejudice, bad faith, or undue delay, a court
should grant leave to file an amended pleading. Foman v. Davis, 371 U.S. 178, 182 (1962).
8. Leave to amend should be freely given when justice so requires. FED. R. CIV. P.
15(a)(2); Foman, 371 U.S. at 182; Whitmire v. Victus, Ltd., 212 F.3d 885, 889 (5th Cir. 2000).
9. Defendants are opposed to this request.
WHEREFORE, Plaintiff respectfully prays that the Court grant the leave to file
Plaintiff’s Third Amended Complaint; and for such other and further relief, at law or in equity, to
which Plaintiff may show himself justly and lawfully entitled.
Respectfully submitted,
By: /s/ Holly B. Williams Holly B. Williams Texas Bar No. 00788674
PLAINTIFF’S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT Case 5:12-cv-00218-C Document 41 Filed 05/15/13 Page 3 of 44 PageID 932
WILLIAMS LAW FIRM, P. C. 1209 W. Texas Avenue Midland, TX 79701 432-682-7800 432-682-1112 (fax) [email protected]
ATTORNEY FOR PLAINTIFF JAMES C. WETHERBE, PH.D.
CERTIFICATE OF CONFERENCE
I hereby certify that on May 15, 2013, I conferred with Gunnar Seaquist, attorney for Defendants Bob Smith, Ph.D. and Lawrence Schovanec, Ph.D., who informed me that he would agree not to oppose this Motion to amend if Plaintiff agreed to withdraw his pending Motion to Lift Stay and Open Discovery. Therefore, Defendants oppose the relief sought in this motion.
/s/ Holly B. Williams Holly B. Williams
CERTIFICATE OF SERVICE
I hereby certify that on May 15, 2013, I electronically filed the foregoing document with the Clerk of Court for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. The electronic case files system sent a “Notice of Electronic Filing” to the following attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means:
Gunnar P. Seaquist Assistant Attorney General Texas Attorney General’s Office General Litigation Division P.O. Box 12548, Capitol Station Austin, TX 78711-2548
/s/ Holly B. Williams Holly B. Williams
PLAINTIFF’S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT Case 5:12-cv-00218-C Document 41 Filed 05/15/13 Page 4 of 44 PageID 933
-----Original Message----- From: Nail, Lance
Hey Jim:
Sorry about that – I wanted to speak to you in private yesterday after I met with all of the impacted parties but I missed you by the time all of those meetings were finished.
The Leadership Council and Coordinating Council meetings tomorrow will be the last for our current groups and the new members will start this fall (with the exception of Kathy Suchy who will start tomorrow). You are invited to and welcome to attend as you remain on both councils through the end of the semester.
We should find some time to meet and plan your transition back to a full time faculty role some time after graduation. I’m not sure what teaching obligations you have already agreed to for next year, so we need to plan all of this out. I want to make sure that we go down the path that is best for you and the college.
Thanks for all that you have done in your outreach role in running the CXR series. The college will look to build upon what you have done with our expanded external relations area. Hopefully the extra manpower will allow us to move all of our outreach/external relations functions to staff positions and free up faculty for more time for research and teaching.
Best- Lance
Lance Nail, Ph.D., CFA Dean and Professor of Finance Rawls College of Business Texas Tech University Box 42101 Lubbock, TX 79409-2101
806.834.1300
From: Jim Wetherbe [mailto:[email protected]] Sent: Tuesday, May 14, 2013 2:07 PM To: Nail, Lance Subject: New Organization structure
Lance,
At the faculty/staff strategic planning meeting this morning you presented a new organization structure that you said had been approved by President Schovanec.
The chart eliminated the position of Associate Dean for Outreach. Is it a correct interpretation that the new organization chart means I am not Associate Dean for Outreach effective today and should no longer attend the Leadership or Coordinating Council meetings?
Thank you for clarifying before the Leadership and Coordinating Council meetings tomorrow.
Jim
EXHIBIT A Case 5:12-cv-00218-C Document 41 Filed 05/15/13 Page 5 of 44 PageID 934
James C. Wetherbe, PhD Stevenson Chaired Professor of MIS Associate Dean for Outreach Director Institute for Internet Buyer Behavior Rawls College of Busin ess Texas Tech University 505.250.9999 [email protected]
EXHIBIT A Case 5:12-cv-00218-C Document 41 Filed 05/15/13 Page 6 of 44 PageID 935
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS LUBBOCK DIVISION
JAMES C. WETHERBE, PH.D. § § CIVIL ACTION NUMBER PLAINTIFF § § V. § § BOB SMITH, PH.D., § 5:12-cv-00218 INDIVIDUALLY AND IN HIS § OFFICIAL CAPACITY AND § LAWRENCE SHOVANEC, PH.D., § INDIVIDUALLY AND IN HIS § OFFICIAL CAPACITY § § DEFENDANTS § JURY DEMANDED
PLAINTIFF’S THIRD AMENDED COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE, SAM R. CUMMINGS:
“[Tenure] is not anything that we want to lose, particularly in the political times we are in
now.” Defendant Bob Smith (“Defendant” or “Smith”) made this statement during the course of
the grievance hearing relating to the denial of Plaintiff Jim Wetherbe’s (“Plaintiff” or
“Wetherbe”) nomination to be a Horn Professor, the highest honor that can be bestowed on a professor at Texas Tech University. Smith’s statement reveals the motive behind his actions toward Wetherbe which include but are not limited to denial of the Horn Professorship, denial of
the Deanship of the Rawls College of Business, removal from the position of Associate Dean of
Outreach, and overt threats to Wetherbe’s position as a Professor, a rank that he has held for
thirty years. This is not merely a private matter between employer and employee; it is retaliation
against a distinguished academic who has the audacity to buck the system by rejecting tenure
when he joined the Texas Tech faculty twelve years ago and to continue to express his views in
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public. Smith’s actions were approved by former President Guy Bailey, for whom Defendant
Interim President Guy Schovanec is properly substituted in this case.
Ironically, the often-stated justification for tenure of faculty at institutions of higher education is academic freedom. However, officials of Texas Tech University have engaged in a campaign of innuendo and character assassination to deprive Plaintiff of due process and retaliate against him because of his openly-held anti-tenure views.
PARTIES
1. PLAINTIFF JAMES C. WETHERBE, PH.D. (“Plaintiff” or “Dr.
Wetherbe”) is an individual who currently resides in Lubbock County, Texas.
2. DEFENDANT BOB SMITH, PH.D. (“Defendant Smith” or “the Provost”) has
appeared and no service of process is necessary at this time. Smith is Provost of Texas Tech
University. As such, he is the Chief Academic Officer of Texas Tech University. He is sued
both individually and in his official capacity.
3. DEFENDANT LAWRENCE SCHOVANEC, PH.D. (“Defendant Schovanec”
or “the Interim President”) has appeared and no service of process is necessary at this time.
Schovanec is Interim President of Texas Tech University. As such, he is the Chief Executive
Officer of Texas Tech University.1 He is sued both individually and in his official capacity.
4. Texas Tech University shall be referred to as “Texas Tech,” “TTU,” or “the
University.” Defendant Schovanec and Defendant Smith shall sometimes be referred to
collectively as “Defendants.”
1 On March 22, 2013, M. Duane Nellis, Ph.D. was named as the 16th President of Texas Tech University. Based on public announcements on the website of Texas Tech University, he will begin his responsibilities on June 15, 2013. At that time, Plaintiff intends to seek leave to add Dr. Nellis in place of Dr. Schovanec. It has also been announced that Dr. Schovanec will become Provost upon the departure of Dr. Smith.
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JURISDICTION AND VENUE
5. Pursuant to 28 U.S.C. §§ 1331 and 1343, the Court has federal question
jurisdiction over this action which arises under the Fourteenth Amendment of the United States
Constitution and the Reconstruction Era Civil Rights Act codified at 42 U.S.C. §§ 1983 and 1985
(3).
6. Venue is proper in the U.S. District Court for the Northern District of Texas,
Lubbock Division pursuant to 42 U.S.C. § 1391(b) because a substantial part of the events or
omissions giving rise to the claim occurred therein.
7. The Court has supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiff’s
state law claims which are so related to the claims within the Court’s original jurisdiction that they form part of the same case or controversy under Article III of the U.S. Constitution.
EXHAUSTION OF ADMINISTRATIVE PROCEDURES
8. By letter dated August 9, 2012, to John T. Huffaker, General Counsel, Texas Tech
University System, Plaintiff provided notice of his claims and copies of the “Horn Grievance”
and the “Dean Grievance,” which are identified in more detail below. A true and correct copy of
the August 9, 2012, grievance letter (without attachments), is attached hereto as Exhibit 1.
9. By letter dated August 22, 2012, to Plaintiff’s counsel, Mr. Huffaker responded
that “there was no further action to be taken within the University’s procedural policies” relating to the “Horn Grievance” and that “[Operating Policy] 70.28 is not an administrative prerequisite which must be exhausted prior to any further action Dr. Wetherbe intends to pursue” relating to the “Dean Grievance.” A true and correct copy of the August 22, 2012, response to the grievance letter is attached hereto as Exhibit 2.
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10. Defendants should be estopped from asserting that Plaintiff failed to exhaust his administrative remedies because Plaintiff tried in good faith to provide actual notice of his claims with an opportunity to resolve them prior to suit.
CONDITIONS PRECEDENT
11. All conditions precedent have been performed or have occurred.
FACTS
Dr. Wetherbe’s Credentials
12. Since 2000, Dr. Wetherbe has held the Robert G. Stevenson Chaired Professor in
Information Technology and has held administrative positions including Founding Director of the Institute for Internet Buyer Behavior (funded by a $500,000 grant he obtained from Best
Buy), Associate Dean for Research and Development, Director of the externally-funded Chief
Executive Roundtable, Associate Dean of Outreach, and Faculty Advisor for the Rawls Graduate
Association of the Rawls College of Business at Texas Tech University (“Rawls College of
Business”).
13. Dr. Wetherbe is an alumnus who returned to Texas Tech in 2000 after 27 years of serving on the faculty of the University of Houston, University of Minnesota, and University of
Memphis as well as serving in a variety of managerial positions in industry including NCR,
Houston Oil and Minerals (acquired by Tenneco) and CSC Index Group. He obtained his
M.B.A. in Management Information Systems from Texas Tech in 1973. Dr. Wetherbe obtained his Ph.D. in Management Information Systems, Organizational Behavior and Computer Science
Management from Texas Tech in 1976.
14. Dr. Wetherbe received the Distinguished Alumnus award from TTU’s Rawls
College of Business in 2006.
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15. Dr. Wetherbe has given hundreds of keynote addresses and speeches worldwide
for corporations, professional organizations and universities (wetherbe.ba.ttu.edu). He was rated
as one of the top 20 lecturers and consultants in Management Information Systems (MIS) by
Information Week and recently was ranked as one of the 20 most influential scholars in the field
in research conducted at Georgia State University. He is co-recipient of the first MIS Quarterly
Distinguished Scholar Award. He has authored and co-authored 32 books, including multiple
editions, is widely published in top journals with over 6500 citations, and generates 50 pages of
Google hits. During his career he has raised over $12 million in funding for research. Dr.
Wetherbe also regularly consults for private companies and has served on the board of directors
for several major corporations, including Best Buy, Ciber, Sandia Motorsport Park, Bizideo,
Ilostmyjob.com, Starthaus, and Dayport. Entrepreneurial efforts include Co-founder of Mead
Publishing and the Wetherbe Group which created the software MOTIVATOR®.
16. At Texas Tech, Dr. Wetherbe’s teacher evaluations consistently place him as the
number one or number two highest-rated professor among the faculty who teach in the Rawls
College of Business Executive and Professional MBA Programs.
17. A true and correct copy of Dr. Wetherbe’s CV is attached as Exhibit 3.
Dr. Wetherbe’s Views on Tenure
18. Dr. Wetherbe’s views on tenure are well-known within the TTU community and
to other academics around the nation and the business leaders he has consulted for and spoken to
during the last approximately 20 years. Wetherbe is a frequent speaker on issues of change and
technology, where he often speaks out against tenure as an obstacle to change. Wetherbe also
regularly consults for private companies and has served on the board of directors for several
major corporations, where he also speaks out against tenure as an obstacle to change.
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19. Wetherbe advocates for rolling five year contracts. See, e.g., James C. Wetherbe,
“It’s Time for Tenure to Lose Tenure,” Harvard Business Review Blog Network, Mar. 13, 2013,
available at http://blogs.hbr.org/cs/2013/03/its_time_for_tenure_to_lose_te.html (a true and
correct copy is attached as Exhibit 4); James C. Wetherbe, “Why I Have a Big Problem with
Academic Tenure,” BloombergBusinessweek, Dec. 28, 2012, available at
http://www.businessweek.com/articles/2012-12-28/why-i-have-a-big-problem-with-academic-
tenure#r=nav-r-blog (a true and correct copy is attached as Exhibit 5); James C. Wetherbe, “Does
Academic Freedom Not Apply to Criticism of Tenure?” The Blog, Huffington Post, Dec. 13,
2012, available at http://www.huffingtonpost.com/james-c-wetherbe/college-professors-tenure-
_b_2294070.html (a true and correct copy is attached as Exhibit 6).
20. Dr. Wetherbe resigned tenure nearly 20 years ago at the University of Minnesota,
declined it at the University of Memphis as the FedEx Chaired Professor of Excellence, and declined it again when he joined TTU as the Robert Stevenson Chaired Professor of MIS. This was a personal, professional and principled decision. Dr. Wetherbe believes in leading by example. While he has rejected tenure himself, he engages in current tenure practices by providing external review letters and voting positively on qualified tenure cases.
21. Tenure is commonly not viewed well by business leaders and taxpayers as they feel it leaves little remedy for subpar teaching often experienced by them and/or their children.
They resent that underperforming faculty (the few that make the majority look bad) have unwarranted job security at a time when the rising cost of a college education is problematic.
For these reasons, not having tenure provides greater credibility for Dr. Wetherbe in the business world.
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22. In Dr. Wetherbe’s view, tenure is more about job security than academic freedom.
Dr. Wetherbe resigned tenure in an effort to set an example that academia would have more credibility if tenure was voluntarily forfeited by faculty from within universities rather than having it eventually eliminated from outside by what has become increasing external pressure from taxpayers, legislatures, and donors. He had hoped to spend the last 25-30 years of his career as a professor without tenure and then document in academic literature the viability and advantages of serving without tenure for productive faculty. In so doing he hoped to influence faculty to replace current tenure practice of guaranteed “life time” employment with rolling multi-year terms.
Defendant Smith’s Knowledge of Wetherbe’s Views
23. Defendant Smith testified under oath that he disagrees with Wetherbe’s position on tenure issues.2 Exhibit 7 at 38:3-5.
24. Defendant Smith testified that his understanding of Dr. Wetherbe’s issue on tenure is:
My understanding is that he has been a tenured professor both at Minnesota and at
University of Houston in the past, but that he rejected tenure at Minnesota at some
point in his career, did not take tenure when he was – or didn’t pursue tenure
when he was at the University of Memphis, and then he chose not to be tenured
here because – my understanding is that when he makes presentations to business
groups, sometimes he’ll make assertions and people [sic] with counter with the
2 On August 3, 2012, Defendant Smith gave a deposition that was limited by court order to one hour in James Wetherbe, Ph.D. v. Debra Laverie, Ph.D.; Cause No. 2012-502,988; In the 99th District Court of Lubbock County, Texas. A true and correct copy of the deposition is attached as Exhibit 7.
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idea that, well, you can say that because you are a tenured professor, and he likes
to be able to say, “No, I’m not tenured.” That’s my understanding.
Exhibit 7 at 49:11-25.
25. Defendant Smith testified that he was not exactly sure when he became aware of
Wetherbe’s views on tenure, but clearly it came out during the course of looking at him as a potential candidate to be a Horn Professor. Exhibit 7 at 47:17-23. He also testified that it came out in Wetherbe’s application to become Dean and his off-campus interview. Exhibit 7 at 48:9-
15. When asked if that was the first time that he became aware of Wetherbe’s opinion on tenure issues, Smith responded, “I think I had – I had heard this beforehand, but I’m not certain.”
Exhibit 7 at 48:16-19.
Tenure Is a Matter of Public Concern
26. Tenure is a matter of public concern as reflected by the following examples of
recent media coverage:
a. On August 24, 2012, the Wall Street Journal presented opposite viewpoints on the issue of whether tenure for college professors should be abolished.
b. The cover story of Texas Monthly for October 2012, is entitled “Storming the
Ivory Tower” and recounts recent battles at the University of Texas and Texas A&M University over college reform, including changes in tenure.
27. A recent Gallup Poll shows that nearly two-thirds of 1081 college and university provosts said they preferred long-term contracts to tenure. Scott Jaschhik & Robert Sternberg,
Skeptical Provosts: An Inside Higher Ed Webinar on results of the 2013 survey of Chief
Academic Officers, Feb. 14, 2013, available at
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http://www.insidehighered.com/sites/default/server_files/files/2013ProvostsSurveyPDF.pdf. A
true and correct copy is attached as Exhibit 8.
28. According to a study by the Pew Research Center, in association with The
Chronicle of Higher Education, 69 percent of college presidents said they would prefer that a majority of faculty work under long-term or annual contracts. Jack Stripling, “Most Presidents
Prefer No Tenure for Majority of Faculty,” The Chronicle of Higher Education, May 15, 2011, available at http://chronicle.com/article/Most-Presidents-Favor-No/127526/. A true and correct
copy is attached as Exhibit 9.
29. At least one empirical study has found that tenure increases the cost of tuition,3 a
matter of public concern for taxpayers who fund public institutions like Texas Tech University.
Dr. Wetherbe’s Employment at Texas Tech
30. Dean of the College of Business Administration Roy Howell made the initial offer
for Dr. Wetherbe to join the Texas Tech faculty as the Robert G. Stevenson Chair in Information
Technology on February 14, 2000. A true and correct copy of the offer letter is attached as
Exhibit 11. The letter provides that the Stevenson Chair appointment is for three years and is renewable subject to the agreement establishing the Chair. The letter also provides that either party can change the terms of appointment on mutual agreement with one year notice to be effective at the beginning of the Fall Semester following the one year notice. The letter states in part, “We also understand that you reject tenure.”
31. Provost John M. Burns made the formal offer by letter dated June 15, 2000. A true and correct copy of the offer letter is attached as Exhibit 12.
3 James Hammerton, Texas’s Higher Education Battle: The Fight to Make the Public University System Work for Students, Freedom Works Foundation Issue Analysis (July 2011). A true and correct copy is attached as Exhibit 10.
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32. Among the qualifications for the recipient of the Stevenson Chair is “a strong
national reputation as a leader in the area of Information Technology” and preference for a
graduate of Texas Tech University. A true and correct copy of the Agreement Establishing the
Robert G. Stevenson Chair in Information Technology is attached as Exhibit 13. There is no
requirement that the recipient of the Chair be a tenured professor.
33. Each year, TTU has provided Dr. Wetherbe with personnel action forms and/or
budget documents showing his job title as Professor. True and correct copies of these documents
are attached as Exhibit 14.
34. Dr. Wetherbe has a philosophical commitment to education as a public good that
should benefit students and society at large. Besides donating funds from his speaker
honorariums and book royalties, and in lieu of receiving income or covering research expenses,
Dr. Wetherbe has donated most of the earnings from his Chair endowment to establish
scholarships, two endowed professorships and support the Rawls College of Business building fund. These contributions are in excess of $1.2 million. A true and correct copy of the
Compensation Donation Agreement is attached as Exhibit 15.
The Horn Professor Nomination
35. The Board of Regents established a special professorship known as the “Paul
Whitfield Horn Professorship,” named in honor of Paul Whitfield Horn, the first president of the institution. The Horn Professorship is the highest honor that the university may bestow on members of its faculty and is granted in recognition of a faculty member’s attainment of national and/or international distinction for outstanding research or other creative, scholarly achievement.
A true and correct copy of TTU Operating Procedure (OP) 32.09, Selection of Paul Whitfield
Horn Professorships, is attached hereto as Exhibit 16.
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36. There are fewer than 40 current Horn Professors on the faculty of over 1,000.
37. During the 2011-2012 school year, Dr. Wetherbe received a nomination for a Paul
Whitfield Horn Professorship (“Horn Professorship”).
38. Dr. Wetherbe’s nomination was initiated by Dr. W.J. Conover, who is himself a
Horn Professor. A true and correct copy of Dr. Conover’s nomination letter is attached hereto as
Exhibit 17. The nomination was recommended by a college committee of all three Rawls
College Horn Professors, including Dr. Conover.
39. The nomination was supported by a number of individuals, both inside and
outside the Rawls College. True and correct copies of the nomination letters are attached as
indicated:
a. F. Warren McFarlan, Albert H. Gordon Professor of Business Administration
Emeritus, Harvard Business School (Exhibit 18);
b. Blake Ives, AIS Fellow, LEO, Bauer Distinguished Professor, C.T. Bauer College
of Business, University of Houston (Exhibit 19);
c. Gordon B. Davis, Honeywell Professor of Management Information Systems,
Emeritus, Carlson School of Management, University of Minnesota (Exhibit 20);
d. Detmar W. Straub, Regents’ Professor of the University System of Georgia, J.
Mack Robinson Distinguished Professor of Information Systems, Editor-in-Chief, MIS Quarterly
(Exhibit 21);
e. Douglas R. Vogel, Chair Professor of IS, City University of Hong Kong, AIS4
President-elect; (Exhibit 22);
4 The Association for Information Systems (AIS) is the premier professional association for individuals and organizations who lead the research, teaching, practice, and study of information systems worldwide.
PLAINTIFF’S THIRD AMENDED COMPLAINT PAGE 11 EXHIBIT B Case 5:12-cv-00218-C Document 41 Filed 05/15/13 Page 17 of 44 PageID 946
f. Carl Adams, Professor and Director, Management Information Systems Research
Center, Carlson School of Management, University of Minnesota (Exhibit 23);
g. Brian D. Janz, Ph.D., Professor of MIS and Associate Director, The FedEx Center
for Supply Chain Management, The Fogelman College of Business and Economics, The
University of Memphis (Exhibit 24);
h. Glenn J. Browne, McIntire School of Commerce, University of Virginia (Exhibit
25);
i. Dennis F. Galletta, Professor of Business Administration and Director, Katz
Doctoral Program, University of Pittsburgh (Exhibit 26).
40. Dr. Wetherbe was nominated by Dr. Allen T. McInnes, Dean of the Rawls
College of Business. A true and correct copy of the Dean’s nomination letter is attached hereto
as Exhibit 27.
41. Dr. Wetherbe’s nomination was approved by the Horn Committee by a vote of 5-
2 and by the Provost of the University. A true and correct copy of the Horn Professor
Nomination Ballot is attached as Exhibit 28.
42. Dr. Wetherbe’s nomination was placed on the draft agenda for the March 2012
meeting of the University Board of Regents. The agenda was drafted at some point prior to
February 1, 2012. A true and correct copy of relevant pages from the draft agenda is attached as
Exhibit 29. However, the agenda item was withdrawn at the request of the Office of the
President. A true and correct copy of a memo from Christina Martinez to the members of the
Board of Regents of the Texas Tech University System and the Administration and Staff of its component universities is attached as Exhibit 30. This memo states in part, “The Horn Professor item from the ACS has been pulled from consideration at this time.” The memo further states,
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“The TTU Horn Professor item (item seven from the original agenda) has been pulled from
consideration as requested by the President’s Office until a later meeting date. All items
following the Horn Professor item have been renumbered….”
43. On March 6, 2012, in an email to Senior Associate Dean Debra Laverie Pam
Roberson, Executive Administrative Associate in the Office of the Provost and Senior Vice
President wrote that Defendant Smith wanted to meet with her about Dr. Wetherbe and “…we
could not find anything that shows he ever had tenure!” On March 8, 2012, Ms. Robersonent an
email to the Horn Committee stating in part, “The Provost has requested a follow up meeting
with the committee. New information has come to light regarding one of the candidates.” A true
and correct copy of the email is attached as Exhibit 31.
44. The “new information” Provost Smith learned was the fact that Dr. Wetherbe
does not have tenure. As further alleged below, Provost Smith learned this information as a
result of Dr. Wetherbe’s nomination to be Dean of the Rawls College of Business.
45. Provost Smith reconvened the Horn Committee, told the members that Dr.
Wetherbe does not have tenure with the hopes that the Horn Committee would choose to vote
again to not approve Dr. Wetherbe’s nomination. However, the Horn Committee chose not to
change its vote.
46. On March 27, 2012, Provost Smith changed his vote on Dr. Wetherbe’s
nomination. TTU President Guy Bailey concurred with Provost Smith. A true and correct copy
of the revised Horn Professor Nomination Ballot is attached as Exhibit 32.
47. In a meeting with Dean Allen McInnes during March 27-30, 2012, Dr. Wetherbe learned that Provost Smith had raised an issue regarding his eligibility for the Horn Professorship because Dr. Wetherbe did not have tenure.
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48. On April 2, 2012, Dr. Wetherbe requested a meeting with Provost Smith, who chose not to meet with him until April 20, 2012.
49. In the meeting on April 20, 2012, which was also attended by Senior Vice Provost
Rob Stewart, Provost Smith stated that in his opinion Dr. Wetherbe’s twelve-year old contract is invalid. Provost Smith also stated the following:
a. Dr. Wetherbe’s appointment in 2000 as Professor, in which he was allowed to decline tenure was a mistake on the part of TTU and must be corrected.
b. Although there are no OPs that state a non-tenured track or non-tenured professor is ineligible for a Horn Professorship, it is Provost Smith’s interpretation that it is the intent, and therefore, Dr. Wetherbe was ineligible.
c. Options for correcting the “mistake” include:
i. Dr. Wetherbe could accept a tenure track position against his wishes and go up for tenure review in the next year in the same manner as an assistant professor. Upon receiving tenure, he would be eligible for a Horn Professorship. Subsequently, the Provost offered a review over the summer but stated this review would be “formidable,” which seemed punitive because Dr. Wetherbe had been offered tenure as part of the review and hiring process in 2000 and had just completed an extensive review for the Horn Professorship. The standards for Horn
Professor are more demanding than those for tenure. Dr. Wetherbe had just provided numerous high profile references for the Horn nomination. To again be required to ask colleagues in his field to provide references for tenure at this stage in Dr. Wetherbe’s career would be professionally embarrassing.
ii. Dr. Wetherbe could accept a tenure track position against his wishes, but not go up for tenure, remain ineligible for a Horn Professorship, and retire within six years.
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iii. Dr. Wetherbe could not accept a tenure track and be stripped of his professorial rank and title and accept a demotion in rank and title.
iv. Dr. Wetherbe could file a grievance;
v. Dr. Wetherbe could litigate to maintain his professorial rank and eligibility for a Horn Professorship; or
vi. Dr. Wetherbe could resign.
50. OP 32.09 provides in part, “The President will forward his/her recommendations to the Board of Regents. If the recommendation of the president varies from the majority vote of the [provost and senior vice president]’s advisory committee, the president will communicate her/his recommendation in writing to the Horn Professors. The PSVP [Provost and Senior Vice
President] shall notify each nominee and her/his college dean of the status of the nomination.”
51. OP 32.09 requires the Provost to notify each nominee and his college Dean of the status of his nomination. By email dated May 29, 2012, to Provost Smith, Dr. Wetherbe inquired about the status of his nomination. A true and correct copy of the email is attached as Exhibit
33.
52. Dr. Smith responded in part, “I am somewhat confused by your request, as I have clearly communicated this information to you previously. However, let me reiterate that, in my opinion, you are not a viable candidate for Horn Professor due to the fact that you have chosen not to engage in the tenure process….Pursuant to OP 32.09, I will inform the Horn Professors in writing as to the reasons for my decision.” A true and correct copy of the email is attached as
Exhibit 34.
53. In an email dated June 1, 2012, to the Horn Professors, Provost Smith misrepresented Dr. Wetherbe’s status as follows: “Dr. Wetherbe was initially appointed as a
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part-time Professor in the College of Business Administration in 2000. He began serving in a full-time capacity in 2009. He was not, nor has he ever been either tenured or placed on tenure track at TTU. This was at Dr. Wetherbe’s specific request.”
54. The email was highly misleading and disparaging to Dr. Wetherbe’s reputation, career, and contributions to TTU.
55. Provost Smith ignored and failed to state the fact that Dr. Wetherbe had been awarded tenure previously at the University of Houston and University of Minnesota, and that he had declined it at the University of Memphis and at TTU when he was hired with the approval of the Dean Howell, Provost Burns, and President Schmidly.
56. There is a meaningful difference between having been promoted and awarded tenure (twice), resigning it, and continuing to decline it when offered (again twice) as opposed to never have been willing to engage in the process.
57. Section 2(c)of OP 32.09 states in part, “The president will forward his/her recommendation to the Board of Regents. If the recommendation of the president varies from the majority vote of the PSVP’s advisory committee, the president will communicate his/her recommendation in writing to the Horn Professors.”
58. Contrary to OP 32.09, President Bailey failed to forward Dr. Wetherbe’s Horn nomination to the Board of Regents.
59. By email dated June 4, 2012, to Provost Smith, Dr. Wetherbe re-urged the Provost and President Bailey to forward his nomination in compliance with OP 32.09. A true and correct copy of the email is attached as Exhibit 35.
60. OP 32.09 does not state that Horn professors must be tenured professors.
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The Horn Grievance
61. On April 26, 2012, Dr. Wetherbe filed a grievance against Defendant Smith
pursuant to Operating Procedure (OP) 32.05, Faculty Grievance Procedures, relating to his
appointment as a Professor and nomination as a Horn Professor (“the Horn grievance”). A true
and correct copy of OP 32.05 is attached as Exhibit 36. A true and correct copy of the Horn grievance (as amended) is attached as Exhibit 37.
62. President Bailey entrusted the job of empanelling a grievance committee to Senior
Vice Provost Rob Stewart, whose immediate supervisor is Defendant Smith. Vice Provost
Stewart indicated that a number of faculty members were unavailable, declined, or recused; however, he refused to identify them.
63. Section 4(b) of OP 32.05 provides in part that the grievant and the administrator may question all witnesses.
64. Dr. Wetherbe and Defendant Smith presented their cases separately to the grievance committee, and were not allowed to hear each other’s presentations. Dr. Wetherbe offered to provide a certified court reporter, and the offer was rejected. An audio recording was made of the proceeding. A certified court reporter prepared a transcript from the audio recording, but there are some portions that are unintelligible. A true and correct copy of the
transcript is attached as Exhibit 38.
65. According to the transcript of the faculty grievance hearing on July 5, 2012,
Defendant Smith stated that the “problem with Professor Wetherbe…emerged through some
coincidental kinds of illuminations during this spring that I realized he was not a tenured – tenure
track or tenured professor. So he really didn’t have the right to have the title of professor.”
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66. According to OP 32.01, Promotion and Tenure Standards and Procedures, posted
December 8, 2009, “[t]enure is designed to accomplish the following purposes:
a. To assure the faculty of freedom of teaching, of research, of opinion, and of full participation as citizens in the community;
b. To provide appropriate procedures of due process for establishing justification for possible termination of tenure, so that faculty members may be guaranteed adequate notice and a fair hearing;
c. To assist the university by encouraging sound standards for the original selection of faculty; and
d. To result in the retention, encouragement, and promotion of the ablest and most promising faculty.”
67. Section 5(b) of OP 32.01 provides in part, “In exceptional cases…professors…may have their initial appointment in the university with tenure when the traditional tenure review procedure set forth in section 5.e. preceded the appointment.”
68. OP 32.01, Promotion and Tenure Standards and Procedures, was adopted by the
Board of Regents on May 18, 2012, but was not posted until July 11. 2012, after Dr. Wetherbe’s grievance hearing on July 5, 2012. A true and correct copy of the revised policy is attached as
Exhibit 39. The revised OP 32.01 states in part, “This policy shall not be applied in derogation of any faculty member’s contract rights as set forth in the faculty member’s letter of appointment.”
69. Despite the obvious conflict of interest of the Vice Provost coordinating the grievance process and the procedural irregularities, on July 6, 2012, the Texas Tech Faculty
Grievance Committee issued its unanimous Report to President Bailey recommending, in part, as
follows:
Professor Wetherbe’s contract with Texas Tech which has been in effect for the last 12 years should continue to be honored.
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We recommend that the process continue by the forwarding of the Horn Committee’s ballot sheet and recommendation letter to the President and that the President subsequently forward his recommendation to the Board of Regents.
A true and correct copy of the Faculty Grievance Report is attached hereto as Exhibit 40.
70. In a one-line letter to Dr. Wetherbe dated July 20, 2012, President Guy Bailey
stated only: “I concur with the Provost’s decision regarding your nomination for Horn
Professor.” A true and correct copy of the letter is attached as Exhibit 41.
71. Section 4(d) of OP 32.05, Faculty Grievance Procedures states in part, “If the
president’s decision differs from that recommended by the Grievance Committee, the written
reasons for such difference will be provided to the grievant and the committee.” However, no
explanation was provided. By rejecting the recommendation of the Grievance Committee, Dr.
Bailey again ignored Section 2(c) of OP 32.09, which requires the president to forward his recommendation to the Board of Regents whether or not he agrees with the Horn nomination.
72. By letter dated July 27, 2012, to Dr. Bailey, Dr. Wetherbe requested a written reason for the decision, clarification whether Dr. Bailey intended to present the Horn nomination to the Board of Regents at its meeting on August 9-10, 2012, and for a written statement regarding the status of his contract with Texas Tech University. A true and correct copy of said letter is attached hereto as Exhibit 42.
73. On August 3, 2012, Defendant Smith was ordered to give a deposition limited to one hour in James Wetherbe, Ph.D. v. Debra Laverie, Ph.D.; Cause No. 2012-502,988; In the
99th District Court of Lubbock County, Texas. During the deposition, Smith testified under oath:
In my opinion, based on all my reading of the OPs, you cannot be a professor if you are untenured; therefore, you can’t recommend somebody
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to be a Horn Professor, the most distinguished professor at the University, unless you are a tenured professor.
See Exhibit 7 at 54:20-24.
74. Defendant Smith was asked, “Did you believe that Dr. Wetherbe’s views on
tenure made him unfit to be a Horn Professor?” Answer: “Yes.” See Exhibit 7 at 48:22-24.
75. Defendant Smith was asked, “Did you think that his views on tenure made him
unfit as a dean candidate as well?” Answer: “Yes.” See Exhibit 7 at 48:25-49:2.
76. OP 32.09 does not state that Horn professors must be tenured professors.
The Dean Search
77. In August of 2011, Dr. Allen McInnes, Dean of the Rawls College of Business,
announced plans to retire.
78. The public posting for the position states in part, “The successful candidate will
have a distinguished record of accomplishment, which merits appointment at the rank of
professor and which ideally will include having an earned doctorate in a discipline appropriate to
the college.” A true and correct copy of the posting is attached hereto as Exhibit 43.
79. The announcement does not require that the Dean be tenured.
80. Dean McInnes does not have tenure.
81. It is not unusual for deans of business schools to be untenured because business
schools value the credentials and experience of business executives. During Dr. Wetherbe’s
career, he has served under three untenured deans who were business executives: David Lilly
and Peter Townley at the University of Minnesota, and Dr. Allen McInnes at Texas Tech.
82. Defendant Smith convened a Dean’s Search Committee, and Dr. Robert Lawless
was hired as an outside search consultant. Dr. Wetherbe was selected to serve on the Dean’s
Search Committee. The Search Committee was composed of twenty members, including
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faculty, administrators, and alumni/business leaders. Robert Stevenson, the donor who endowed
Dr. Wetherbe’s Chair, was a member of the Search Committee.
83. Dr. Wetherbe received a number of internal nominations from faculty and external nominations from faculty and business leaders to be Dean. True and correct copies of the nomination letters are attached as indicated:
a. James J. Hoffman, Ph.D., Jerry S. Rawls Chair in Health Care & Operations
Management, Associate Dean for MBA Programs & Executive Education, Rawls College of
Business, Texas Tech University (Exhibit 44);
b. Bobby G. Stevenson, President, Ciber, a global information technology company
(Exhibit 45);
c. William R. Pasewark, Webster Professor of Business, Area of Accounting, Rawls
College of Business, Texas Tech University (Exhibit 46);
d. Dale M. Dunn, MD, MBA, FCAP, FASCP, Professor and May Owen Chairman,
Department of Pathology, Chief Medical Officer, Associate Dean of Clinical Affairs, Texas Tech
School of Medicine (Exhibit 47);
e. Brian D. Janz, Ph.D., Professor of MIS and Associate Director, The FedEx Center for Supply Chain Management, The Fogelman College of Business and Economics, The
University of Memphis (Exhibit 48);
f. Dr. Eric Walden, Rawls College of Business, Texas Tech University (Exhibit 49);
g. Donald R. Jones, Ph.D., James C. Wetherbe Professor of MIS, MIS Doctoral
Advisor, Rawls College of Business, Texas Tech University (Exhibit 50);
h. Dennis F. Galletta, Professor of Business Administration and Director, Katz
Doctoral Program, University of Pittsburgh (Exhibit 51);
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i. Robert J. Ritchey, Ph.D., Associate Coordinator of MBA Programs, Area of
Finance, Rawls College of Business, Texas Tech University (Exhibit 52);
j. Richard M. Schulze, Founder and Chairman of the Board, Best Buy Co., Inc.
(Exhibit 53);
k. Qing Cao, Jerry Rawls Professor of Management Information Systems, Rawls
College of Business, Texas Tech University (Exhibit 54);
l. Bradley T. Ewing, Ph.D., Rawls Professor of Operations Management, Rawls
College of Business, Texas Tech University (Exhibit 55);
m. Tom Walker, Gateway Homes, Ltd (Exhibit 56).
n. Emilia S. Westney, MBA, CRC, Director, Center for Professional Development,
Instructor, Area of Management, Rawls College of Business, Texas Tech University (Exhibit
57);
o. Barry Orr, Chairman/CEO, First Bank & Trust (Exhibit 58);
p. G. Tyge Payne, Ph.D., Associate Professor of Strategic Management & Rawls
Professor of Management, Rawls College of Business, Texas Tech University (Exhibit 59);
q. Tomas M. Hult, Ph.D., Eli Broad Professor of Marketing & International Business
Director, International Business Center (CIBER), Michigan State University’s Eli Broad College
of Business, Editor, Journal of the Academy of Marketing Science, Executive Director, Academy
of International Business (Exhibit 60);
r. Gordon B. Davis, Honeywell Professor of Management Information Systems,
Emeritus, Carlson School of Management, University of Minnesota (Exhibit 61);
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s. Keith H. Brigham, PhD, MBA, Associate Professor of Entrepreneurship, Kent R.
Hance Professor in Entrepreneurship, Director of Entrepreneurship Programs, Area of
Management, Rawls College of Business, Texas Tech University (Exhibit 62);
t. Mark A. Thompson, Ph.D., Rawls College of Business, Texas Tech University
(Exhibit 63);
u. Phillip Flamm, MBA, CAPM, Core Course Instructor, Information Systems and
Quantitative Sciences, Rawls College of Business, Texas Tech University (Exhibit 64);
v. Ronald K. Mitchell, CPA, Ph.D., Professor of Entrepreneurship, Jean Austin
Bagley Regents Chair in Management, Area of Management Doctoral Program Advisor, Rawls
College of Business, Texas Tech University(Exhibit 65);
ww. Denton Collins, Ph.D., Jerry S. Rawls Associate Professor of Accounting, Rawls
College of Business, Texas Tech University (Exhibit 66).
84. Dr. Wetherbe resigned from the Search Committee on January 10, 2012, in order to be eligible. Dr. Wetherbe was the only “internal candidate,” meaning he was the only candidate currently employed by the Rawls College of Business. Dr. Wetherbe became a formal candidate for the deanship on February 14, 2012. A true and correct copy of his acceptance letter is attached as Exhibit 67.
85. As part of his due diligence in considering the Dean candidacy, Dr. Wetherbe asked and was informed by Defendant Smith in an email on February 29, 2012, that (according to Defendant Smith’s interpretation of OP 32.09(3)(a), if appointed Dean before being appointed
Horn Professor, Dr. Wetherbe would no longer be eligible to be a Horn Professor. No mention was made of the fact that the lack of tenure would disqualify Dr. Wetherbe from being Dean. A true and correct copy of the email exchange is included as Exhibit 68.
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86. After an extensive search that included over 60 nominees from around the country, four finalists were recommended by the Search Committee to interview on campus with the Provost and President of Texas Tech University.
87. Minutes from the Rawls College of Business Dean Search Organizational
Meeting on November 18, 2011, show that Defendant Smith charged the Search Committee with identifying five or six candidates for short off-campus interviews that he wished to sit in and observe. Based on the off-campus interviews, the Search Committee was to provide two or three unranked finalists. A true and correct copy of the minutes is attached as Exhibit 69.
88. The following question was included in the Candidate Interview Questions for the off-campus interviews:
The Provost asked that we ask each candidate the following questions for his presentation to the board. Are you currently tenured? Please provide a summary of your tenure history.
89. A true and correct copy of the interview questions is included at Exhibit 70.
90. The question was not included in two previous drafts of the interview questions, which are attached as Exhibit 71.
91. Defendant Smith admitted in the faculty hearing for the Horn grievance that he added the interview question specifically because of Dr. Wetherbe. (“Actually [Wetherbe’s untenured status] came to my attention “during the process wherein he was applying to become the Dean, and I had discussions with the search committee and with others, and it was suggested to me by someone in the business school that maybe he was not tenured. Then I looked into the records, and then I insisted that when we had our off-campus interviews that every candidate speak to the issue of whether he had tenure of not. So that was covered.” Exhibit 38 at 28:19-
29:3.
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92. Dr. Wetherbe was asked about his tenure status during his off-campus interview, and he told the search committee that he had rejected tenure and why, consistent with his previous public expression of his views.
93. Following off-campus interviews, the Search Committee recommended four candidates to Defendant Smith for on-campus interviews. The candidates were ranked according to the Hare system even though the Provost had instructed the Search Committee not to rank them.
94. Dr. Wetherbe was included within the top four despite sharing his views on tenure with the Search Committee.
95. Instead of following the Search Committee recommendation, Defendant Smith decided to interview three candidates, instead of four, and eliminated Dr. Wetherbe as a candidate.
96. A few weeks later, one of the top four candidates withdrew from the search.
97. Although Dr. Wetherbe was recommended among the top four candidates, Dr.
Wetherbe was not selected as a replacement for the candidate who withdrew. Instead, Lance
Nail, who was not even in the top four candidates, was interviewed and eventually selected as
Dean of the Rawls College. No support letters or even references were received on behalf of Dr.
Nail. A true and correct copy of the list of candidates who were interviewed is attached as
Exhibit 72.
98. Dr. Wetherbe was not told at the time that his view on tenure disqualified him from being Dean, according to Defendant Smith.
99. Defendant Smith later testified under oath that he chose not to interview Dr.
Wetherbe for three reasons:
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Because, first of all, I didn’t think his off-campus interview went very well. Secondly, he’s a non-tenured faculty member of the university. And, thirdly, when I reviewed his materials, I did not agree with some of his philosophies on being a leader of a college.
100. Dr. Wetherbe’s off-campus interview must have gone well in the eyes of the
Search Committee or he would not have been recommended as one of the top four candidates. It is obvious that Defendant Smith disagreed with Dr. Wetherbe’s philosophy on tenure and excluded him from further consideration as Dean because of his views on tenure.
101. As alleged above, Defendant Smith testified that he could not remember when he first became aware of Dr. Wetherbe’s views on tenure, but he became aware of these views during the dean search process. See Exhibit 7 at 47:17-23.
102. Defendant Smith further testified that he thought Dr. Wetherbe’s tenure views were in his application, and that the issue certainly came up in his off-campus interview which was either March 8-9, 2012. See Exhibit 7 at 48:9-15.
103. In fact, Dr. Wetherbe’s views on tenure were not included in his application. Dr.
Wetherbe discussed his views in a meeting on February 3, 2012, with Defendant Smith and Vice
Provost Stewart. Dr. Wetherbe discussed his overlapping roles at both the University of
Minnesota and the University of Memphis during a seven year period between 1993 and 2000.
During this time, Dr. Wetherbe directed the MIS Research Center at the University of Minnesota and the FedEx Center for Cycle Time Research and served as interim Dean at the University of
Memphis. The fact that Dr. Wetherbe had declined tenure was stated and discussed during the meeting.
104. As alleged above, Defendant Smith also testified that he believes Dr. Wetherbe’s views on tenure make him unfit to be a Horn Professor, and unfit to be a Dean candidate. See
Exhibit 7 at 48:22-49:2.
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105. Ironically, when asked to clarify his concerns in terms of Dr. Wetherbe’s tenure status, Defendant Smith acknowledged Dr. Wetherbe’s right of free speech, which according to
Defendant Smith only applies to those who have tenure:
Well, the issue is primarily whether someone is tenured or not. I could care less if Professor Wetherbe decided after he was tenured that, you know, tenure is not so important, and he might even try to make that case in the college. That would be his Constitutional right to do that. But I do object to somebody being a dean and not being tenured because, then, they are making recommendations for others for tenure and to me, that’s wrong, it’s unfair.
See Exhibit 7 at 53:17-54:2.
106. Due to his resignation from the search committee in early January, the fact that
Dr. Wetherbe was a potential candidate was common knowledge to the faculty and staff of the
Rawls College of Business. In other words, to the faculty and staff of the Rawls College of
Business, a reference to the “internal candidate” was synonymous with an explicit reference to
Dr. Wetherbe.
107. Robert Stevenson is founding CEO of CIBER, benefactor of Dr. Wetherbe’s
Chair, and a Distinguished Donor who was appointed to the Dean Search Committee by
Defendant Smith. On April 30, 2012, Mr. Stevenson sent a letter to Defendant Smith questioning his conduct in the Dean Search, and particularly his elimination of Dr. Wetherbe as a candidate after Dr. Wetherbe had been selected by the Search Committee for on-campus interviews. A true and correct copy of the letter is included as Exhibit 73.
108. On May 17, 2012, Mr. Stevenson sent a second letter to Defendant Smith because he did not feel that Defendant Smith had adequately addressed his concerns. Mr. Stevenson objected to Defendant Smith’s decision to eliminate Dr. Wetherbe, “a highly qualified candidate from a campus interview where he could share his vision for the Rawls College with the faculty
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and leadership of Texas Tech.” A true and correct copy of the letter is included as Exhibit 74.
Mr. Stevenson also indicated his intent to cancel an anticipated $9 million gift to Texas Tech.
Defendant Smith never responded to the second letter.
The Provost’s Email
109. On February 2, 2012, Defendant Smith sent an email to the entire faculty and staff
of the Rawls College of Business, and the twenty person Dean’s Search Committee. The email’s
purpose was to quash an alleged rumor Defendant Smith claimed to have learned of from an
unnamed source. A true and correct copy of the email is attached as Exhibit 75.
110. Defendant Smith alleged that a rumor had emerged from within the Rawls
College of Business that a strong internal candidate had an “inside track” for the deanship, and
thus that other candidates need not apply for the deanship. At that time, it was well known that
Dr. Wetherbe was the only internal candidate for the deanship. The email emphasized that no such inside track existed, and further emphasized that quashing the rumor was necessary to
return the appearance of honesty and authenticity to the Dean’s Search, which the rumor had diminished.
111. Defendant Smith’s claimed sources for the “rumor” were later revealed to first be
Dr. Debra Laverie and next, the consultant hired by the University to lead the search, Dr. Robert
Lawless. However, Dr. Lawless testified under oath that he did not discuss any “rumor” about any internal candidate having an inside track with the Provost, and that he had not heard of or discussed any such rumor. Under oath, Dr. Laverie has given conflicting evidence regarding whether such a rumor existed.
112. Dr. Wetherbe filed suit against Dr. Laverie in Cause No. 2012-502,988; in the
99th District Court of Lubbock County, Texas. Dr. Wetherbe has alleged various causes of
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action against Dr. Laverie individually for slander and libel, based on her involvement in
spreading the rumor, which was false, and based on her statements to third parties that Dr.
Wetherbe has used an electronic device to listen to others’ conversations and/or has engaged in
wiretapping. Wetherbe was harmed by Laverie’s actions including but not limited to slandering
him to Defendant Smith. Even if Defendant’s Smith’s actions toward Wetherbe were motivated
by the rumor started by Laverie, they were also motivated by an intent to retaliate against
Wetherbe based on his anti-tenure views and conduct.
The Dean Grievance
113. On June 14, 2012, Dr. Wetherbe filed a grievance against Defendant Smith
alleging that he denied Dr. Wetherbe’s due process rights and/or retaliated against Dr. Wetherbe
for exercising his right to free speech with respect to tenure by not selecting Dr. Wetherbe for the position of Dean of the Rawls College of Business. A true and correct copy of the Dean
Grievance is attached as Exhibit 74.
114. By letter dated July 19, 2012, President Guy Bailey responded that the Faculty
Grievance Procedure is not applicable. A true and correct copy of the Dean Grievance is attached as Exhibit 76.
115. As alleged above, by letter dated August 9, 2012, to John T. Huffaker, General
Counsel, Texas Tech University System, Plaintiff provided notice of his claims and copies of the
“Horn Grievance” and the “Dean Grievance.”
116. Mr. Huffaker responded by letter dated August 22, 2012, that Plaintiff had
exhausted his administrative remedies.
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The Associate Dean Position
116. On May 14, 2013, Dr. Wetherbe attended a strategic planning meeting of the
entire faculty and staff of the Rawls College of Business. Dean Lance Nail presented a new
organizational chart. The chart omitted Dr. Wetherbe’s position of Associate Dean of Outreach.
Dr. Wetherbe received no advance notice of this change. Ironically, the meeting occurred in a
lecture hall that had been funded by Dr. Wetherbe’s donations.
117. Dr. Wetherbe sent an email to Dean Lance Nail who confirmed the change and
furthermore indicated that Plaintiff will no longer be a member of the Leadership Council, the
Coordinating Council, and the Chief Executive Roundtable, a program that he has directed and
for which he has obtained external funding during the last five years. A true and correct copy of
the email is attached as Exhibit 77.
The Uncertainty of Wetherbe’s Status in the Future
118. As alleged above, in the meeting on April 20, 2012, which was also attended by
Senior Vice Provost Rob Stewart, Defendant Smith stated that in his opinion Dr. Wetherbe’s
twelve-year old contract was invalid.
119. Defendant Smith also stated that Dr. Wetherbe’s appointment in 2000 as
Professor, in which he was allowed to decline tenure was a mistake on the part of TTU and must
be corrected.
120. Options for correcting the “mistake” included (a) Dr. Wetherbe could accept a
tenure track position against his wishes and go up for tenure review in the next year in the same
manner as an assistant professor; (b) Dr. Wetherbe could accept a tenure track position against
his wishes, but not go up for tenure, remain ineligible for a Horn Professorship, and retire within
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six years; (c) Dr. Wetherbe could not accept a tenure track and be stripped of his professorial
rank and title and accept a demotion in rank and title; (d) Dr. Wetherbe could resign.
117. During the grievance hearing, one of the faculty members asked if Wetherbe elected not to put himself on a tenure track, would his appointment change for the fall.
Defendant Smith replied, “It has to change.” See Exhibit 38 at 33:8-12. During the grievance hearing, Defendant Smith also stated, “Once you find out that you’re in an untenable position, you have to correct it. Otherwise, you corrupt the system.” See Exhibit 38 at 28:16-18.
118. TTU has failed to respond to Plaintiff’s request on July 27, 2012, for a written statement of TTU’s position regarding the status of his contract.
FIRST CAUSE OF ACTION –SECTION 1983 –FIRST AMENDMENT
119. Dr. Wetherbe incorporates by reference all of the foregoing and further alleges as
follows:
120. Defendants retaliated against Dr. Wetherbe for exercising his right to free
speech—as guaranteed by the First Amendment to the United States Constitution—in violation
of 42 U.S.C. §1983 (“Section 1983”).
121. Specifically, Dr. Wetherbe engaged in speech regarding a matter of public
concern – tenure. As alleged in more detail above, Dr. Wetherbe believes that tenure is more
about job security than academic freedom. Dr. Wetherbe has openly espoused this belief. Dr.
Wetherbe advocates that tenure should be replaced by rolling five-year contracts. By rejecting
tenure when he joined the faculty at Texas Tech University, and continuing his employment each
year as a non-tenured faculty member, Dr. Wetherbe engaged in conduct that constitutes speech.
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122. Dr. Wetherbe suffered an adverse employment action when (1) he was not appointed a Horn Professor; (2) when he was not selected as Dean of the Rawls College of
Business; and (3) was deprived of the position of Associate Dean of Research.
123. Dr. Wetherbe’s interest in commenting on matters of public concern outweighs
TTU’s interest in promoting efficiency. Dr. Wetherbe’s speech was a substantial or motivating factor in Defendants’ adverse employment action. Dr. Wetherbe does not have to prove that his speech activities were the only reason Defendants made the decision to deny him the Horn professorship and to deny him promotion to Dean of the Rawls College. Dr. Wetherbe only has to prove that his speech activities were a substantial consideration that made a difference in or influences the Defendants’ decision.
124. Evidence that Defendants retaliated against Dr. Wetherbe because of his anti- tenure views includes but is not limited to:
a. Defendant’s Smith’s initial approval of Dr. Wetherbe’s Horn nomination, and then decision to withdraw his approval;
b. Defendant Smith’s attempt to get the Horn professors to change their nomination;
c. Defendants’ failure to follow the Horn OP 32.09 and the Faculty Grievance OP
32.05;
d. Dr. Smith’s statements about tenure during the faculty grievance hearing related to the Horn nomination;
e. Dr. Smith and former President Bailey’s decision to ignore the recommendation of the faculty grievance committee;
f. Dr. Smith’s addition of questions relating to tenure to the Dean interviews;
g. Neither the Horn OP nor the announcement for the Dean position require tenure;
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h. Previous Dean Allen McInnes did not have tenure;
i. Dr. Smith refused to interview Dr. Wetherbe even though he was one of the final
four candidates and the candidate ultimately chosen was not within the final four; and
j. The Dean candidate finally chosen was clearly less qualified than Dr. Wetherbe.
h. Dr. Wetherbe was removed from the position of Associate Dean of Outreach.
125. Dr. Wetherbe suffered damages as a result of Defendants’ actions. Defendants’
actions were the proximate or legal cause Dr. Wetherbe’s damages.
126. In consideration of the law clearly established at the time they occurred, these
deprivations and violations were objectively unreasonable.
127. The right of a non-tenured faculty member to be free from retaliation for
exercising his First and Fourteenth Amendment rights has been established since at least 1972.
Perry v. Sinderman, 408 U.S. 593, 598 (1972) (citing Shelton v. Tucker, 364 U.S. 479 (1960);
Keyishian v. Board of Regents, 385 U.S. 589 (1967)).
128. Regardless of when or how he learned of Dr. Wetherbe’s views, Defendant Smith disagreed with Dr. Wetherbe’s anti-tenure conduct and/or speech (which legally constitutes speech) and considered it to be a threat to the institution of tenure, which is the subject of serious public debate at this time.
129. Defendants are liable in their individual capacities and are not entitled to qualified immunity because their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known at the time of the actions.
SECOND CAUSE OF ACTION–SECTION 1983–DUE PROCESS
130. Dr. Wetherbe incorporates by reference all of the foregoing and further alleges as
follows:
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131. Defendants failed to follow TTU Operating Procedures including but not limited
to President Bailey’s refusal to forward Dr. Wetherbe’s Horn Professor nomination to the Board
of Regents.
132. Defendants, acting under color of authority vested in them by the State of Texas,
have indicated their intent to terminate Dr. Wetherbe’s employment without due process of law
in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C.A.
§1983. This claim is predicated on both procedural and substantive due process. This claim
arises both directly under 42 U.S.C.A. §1983. Dr. Wetherbe will suffer irreparable harm to his
reputation if his rank of Professor is removed without due process.
133. Defendants are liable in their individual capacities and are not entitled to qualified
immunity because their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known at the time of the actions.
THIRD CAUSE OF ACTION – PROSPECTIVE INJUNCTIVE RELIEF
134. Dr. Wetherbe incorporates by reference all of the foregoing and further alleges as
follows:
135. Defendant Smith is Provost and Senior Vice President of Texas Tech University.
He reports to the President of Texas Tech University. As the University’s Chief Academic
Officer, he has a duty to implement the University’s operating procedures with respect to Faculty
Tenure and Promotion.
136. Defendant Schovanec is the successor to President Guy Bailey, who left the
employment of Texas Tech University.5 As Interim President, Defendant Schovanec is the Chief
5 On March 22, 2013, M. Duane Nellis, Ph.D. was named as the 16th President of Texas Tech University. Based on public announcements on the website of Texas Tech University, he
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Executive Officer of the University. The President is appointed by the Board of Regents and
reports to and is responsible to the Chancellor, but has access to the Board or Regents, and the
Board of Regents has access to him. The President has general authority and responsibility for
the administration of Texas Tech University.
137. There is a reasonable likelihood that Plaintiff will again be subjected to
unconstitutional actions because Defendant Smith and/or Texas Tech University has refused to
respond to inquiries regarding the status of Plaintiff’s contract and whether Texas Tech
University intends to honor his contract. As alleged above, Defendant Smith has stated that
Plaintiff’s appointment is a mistake that must be corrected or the system will be corrupted, or
words to that effect.
138. Plaintiff will suffer irreparable harm to his reputation if he is required to wait until
his rank is removed and/or his employment is terminated before he seeks legal redress.
139. As a result of violations of the First Amendment and Fourteenth Amendment, as
set forth above, Plaintiff is entitled to prospective injunctive relief according to the Ex Parte
Young doctrine against Defendant Smith in his official capacity and/or Defendant Schovanec in
his official capacity, including but not limited to an injunction requiring Texas Tech to honor his
contract including his rank as Professor, return him to the position of Associate Dean, an order
that requires Defendant Schovanec to forward Plaintiff’s Horn nomination to the Board of
Regents, an order of promotion to the position of Horn Professor, and/or an order of promotion
to Dean of the Rawls College of Business.
140. Plaintiff is also entitled to recover reasonable attorney’s fees, costs, and litigation
expenses from Defendants.
will begin his responsibilities on June 15, 2013. At that time, Plaintiff intends to seek leave to substitute Dr. Nellis for Dr. Schovanec.
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FOURTH CAUSE OF ACTION – DECLARATORY RELIEF
141. Dr. Wetherbe incorporates by reference all of the foregoing and further alleges as
follows:
142. Dr. Wetherbe brings this suit for a declaratory judgment under both Federal Rule
of Civil Procedure 57 and 28 U.S.C. §§ 2201-2202. Dr. Wetherbe seeks a declaratory judgment
stating that he is entitled to the rank of Professor and that his contract is valid and cannot be terminated except upon one year’s notice to be effective the beginning of the Fall Semester following the one year notice.
FIFTH CAUSE OF ACTION – TEXAS CONSTITUTION
143. Dr. Wetherbe incorporates by reference all of the foregoing and further alleges as
follows:
144. Defendant has violated Article I, Sections 8 and 19 of the Texas Constitution.
DAMAGES
145. Plaintiff suffered monetary damages in the difference in the compensation that he
would have earned as an Associate Dean, a Horn Professor, or alternatively as Dean of the Rawls
College of Business, and what he has actually made. Plaintiff has suffered irreparable harm and loss of professional stature, emotional distress, humiliation, and mental anguish. Plaintiff seeks
monetary damages only against Defendant Smith and Defendant Schovanec individually.
ATTORNEYS’ FEES
146. It was necessary for Dr. Wetherbe to hire the undersigned attorney to protect his
rights. Dr. Wetherbe is entitled to an award of reasonable attorneys’ fees and costs under 42
U.S.C. § 1988(b) as part of prospective injunctive relief.
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JURY DEMAND
147. In accordance with Federal Rule of Civil Procedure 28, Dr. Wetherbe demands a trial by jury of all issues raised in this civil action that are triable of right (or choice) by a jury.
DEMAND FOR JUDGMENT
148. In accordance with Federal Rule of Civil Procedure 8(a), Dr. Wetherbe makes the
following demand that judgment be issued in his favor on all of his claims and respectfully
requests that this Court:
A. Issue an injunction and/or declaratory judgment preventing Defendants
from violating Plaintiff’s civil rights prospectively;
B. Issue an injunction and/or declaratory judgment that Plaintiff is entitled to
the rank of Professor and that his appointment and contract is valid with a notice provision as
stated in the contract;
C. Issue an injunction requiring the Interim President to forward Plaintiff’s
Horn Professorship nomination to the Board of Regents;
D. Issue an injunction ordering Plaintiff to be promoted to Horn Professor
and/or Dean of the Rawls College of Business, and to be returned to the position of Associate
Dean;
E. Award compensatory damages against Defendant Smith and Defendant
Schovanec individually;
F. Award Dr. Wetherbe reasonable attorneys’ fees and costs;
G. To the greatest extent allowed by law, issue a monetary judgment granting
Dr. Wetherbe pre-judgment and post-judgment interest on all amounts to which he is entitled;
and
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H. Award Dr. Wetherbe such additional relief as this Court deems proper and just and to which he is entitled.
PRAYER
WHEREFORE, Dr. Wetherbe prays for judgment against Defendants for the following:
a. Injunctive and/or declaratory relief as alleged above;
b. Attorneys’ fees and costs;
c. Pre-judgment and post-judgment interest;
d. Such other and further relief, at law or in equity, to which Dr. Wetherbe may show himself justly and lawfully entitled.
Respectfully submitted,
/s/ Holly B. Williams
By: ______Holly B. Williams Texas Bar No. 00788674
WILLIAMS LAW FIRM, P. C. 1209 W. Texas Avenue Midland, TX 79701 432-682-7800 432-682-1112 (fax) [email protected]
ATTORNEY FOR PLAINTIFF JAMES C. WETHERBE, PH.D.
PLAINTIFF RESPECTFULLY DEMANDS A TRIAL BY JURY
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CERTIFICATE OF SERVICE
I hereby certify that on May 15, 2013, I electronically filed the foregoing document with the Clerk of Court for the U.S. District Court, Western District of Texas, using the electronic case filing system of the court. The electronic case files system sent a “Notice of Electronic Filing” to the following attorneys of record who have consented in writing to accept this Notice as service of this document by electronic means:
Gunnar P. Seaquist Assistant Attorney General Texas Attorney General’s Office General Litigation Division P.O. Box 12548, Capitol Station Austin, TX 78711-2548 [email protected]
/s/ Holly B. Williams Holly B. Williams
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