UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 00-50240 Summary Calendar Civil Docket #MO-99-CV-19 _______________________

WAYLON D. GRIFFIN, Ph.D.,

Plaintiff-Appellant,

versus

CHARLES SORBER, President, University of Texas at the Permian Basin; GARY KLINE, Member, University of Texas System Board of Regents; BERNARD RAPOPORT, Member, University of Texas System Board of Regents; THOMAS O. HICKS, Member, University of Texas System Board of Regents; MARTHA SMILEY, Member, University of Texas System Board of Regents; RITA C. CLEMENTS, Member, University of Texas System Board of Regents; DONALD L. EVANS, Member, University of Texas System Board of Regents; ZAN W. HOLMES, JR., Member, University of Texas System Board of Regents; LOWELL H. LEBERMANN, JR., Member, University of Texas System Board of Regents; TOM LOEFFLER, Honorable, Member, University of Texas System Board of Regents; ELLEN C. TEMPLE, Member, University of Texas System Board of Regents; PATRICK C. OXFORD, Member, University of Texas System Board of Regents; A. W. RITER, Member, University of Texas System Board of Regents; A. R. SANCHEZ, JR., Member, University of Texas System Board of Regents; WOODY L. HUNT, Member, University of Texas System Board of Regents; CHARLES MILLER, Member, University of Texas System Board of Regents; RAUL R. ROMERO, Member, University of Texas System Board of Regents,

Defendants-Appellees. _______________________________________________________________

Appeal from the United States District Court for the Western District of Texas _________________________________________________________________ January 5, 2001 Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Professor Griffin challenged the action of University of

Texas Permian Basin’s President and the University of Texas Board

of Regents in firing him for conduct that the authorities’ deemed

violative of the University sex harassment policies. The district

court dismissed his § 1983 claims under Rule 12(b)(6) and granted

summary judgment on his interference with contract claims.

Professor Griffin’s appeal raises only his claims for violations of

procedural and substantive due process and retaliation for

exercising his right of free speech. While summary judgment rather

than dismissal on the pleadings was the more appropriate vehicle to

address the procedural posture of the case, we affirm the judgment

for the defendants.

Where a district court relies on matters outside the

pleadings in ordering a Rule 12(b)(6) dismissal, this court can and

does review the case de novo as if a summary judgment had been

granted. See Fed. Rule Civ. Proc. 12(c); Baker v. Putnal,

(5th Cir. 1996). That is what the trial court did here,

where a fully developed summary judgment motion and Professor

Griffin’s response were before it.

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 This procedural quibble aside, we find no reversible

error in the court’s rulings on the three above-noted issues. In

particular, Professor Griffin received sufficient procedural due

process notwithstanding that the Regents’ decision went against the

recommendation of a mere reprimand by the University of Texas

Permian Basin faculty hearing committee. Ferguson v. Thomas,

(5th Cir. 1970); Levitt v. University of El Paso,

(5th Cir. 1985), cert. denied

(1985). Professor

Griffin knew the charges against him and had ample opportunity to

respond.

Second, there is no evidence to support the claim that

the appellees’ actions were so arbitrary as to violate Griffin’s

substantive due process rights. Regents of the University of

Michigan v. Ewing,

(1985). This is not a matter of

pleading, as Griffin suggests, but a wholesale failure of proof on

his part.1

Third, the district court did not err in concluding that

Professor Griffin’s “Love Policy” memo, written in 1992, did not in

its content, form and context, involve a matter of public concern

but was primarily written as a University of Texas Permian Basin-

employee on an internal matter. Connick v. Myers,

1 Because Griffin’s constitutional rights were not violated, it follows that he had no official-capacity claims for injunctive relief against the appellees.

3 (1983). The memo did not give rise to protectable First Amendment

rights.

The judgment of the district court is AFFIRMED.

4