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In the United States District Court for the Northern District of Texas Lubbock Division

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In the United States District Court for the Northern District of Texas Lubbock Division 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 <[email protected]> To: Jim Wetherbe <[email protected]> Sent: Tue, May 14, 2013 2:59 pm Subject: RE: New Organization structure 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 PLAINTIFF’S THIRD AMENDED COMPLAINT PAGE 1 EXHIBIT B Case 5:12-cv-00218-C Document 41 Filed 05/15/13 Page 7 of 44 PageID 936 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.
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