Filed: Nov. 02, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 2, 2006 Charles R. Fulbruge III Clerk No. 05-21098 Summary Calendar FACULTY RIGHTS COALITION; WOLFGANG P HIRCZY DE MINO, Plaintiff-Appellants, versus HOSSEIN SHAHROKHI, in his official capacity as Executive Director of Information Services at UHD, a component of the University of Houston System; MOLLY WOODS, In her official capacity as Provost of The University of Houston D
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 2, 2006 Charles R. Fulbruge III Clerk No. 05-21098 Summary Calendar FACULTY RIGHTS COALITION; WOLFGANG P HIRCZY DE MINO, Plaintiff-Appellants, versus HOSSEIN SHAHROKHI, in his official capacity as Executive Director of Information Services at UHD, a component of the University of Houston System; MOLLY WOODS, In her official capacity as Provost of The University of Houston De..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 2, 2006
Charles R. Fulbruge III
Clerk
No. 05-21098
Summary Calendar
FACULTY RIGHTS COALITION; WOLFGANG P HIRCZY DE MINO,
Plaintiff-Appellants,
versus
HOSSEIN SHAHROKHI, in his official capacity as Executive Director
of Information Services at UHD, a component of the University of
Houston System; MOLLY WOODS, In her official capacity as Provost
of The University of Houston
Defendant-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-04-CV-02127
--------------------
Before JOLLY, DENNIS, and CLEMENT Circuit Judges.
PER CURIAM:*
Plaintiff De Mino,1 an adjunct faculty member at the
University of Houston Downtown (UHD), appeals the district court’s
grant of summary judgment in favor of the defendants, UHD
officials, in this 42 U.S.C. 1983 action. This case stems from UHD
*
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this opinion should not be published and is not precedent except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.
1
De Mino has also formed a group that he calls the Faculty
Rights Coalition to advocate on behalf of adjunct faculty members
at the university.
No. 05-21098
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officials’s alleged violation of Plaintiff’s First Amendment
rights, retaliation, and violation of Plaintiff’s Fourteenth
Amendment rights to Equal Protection of the law. Plaintiff bases
his appeal upon the following alleged errors of the district court:
(1) the grant of summary judgment for defendants on plaintiff’s
First Amendment claims (violation by e-mail restrictions and
retaliation); (2) the grant of summary judgment for defendants on
plaintiff’s Equal Protection claims; (3) the ruling that plaintiff
lacked standing to challenge the Texas statutes at issue; and (4)
award of costs to defendants.
Background
Plaintiff, in his initial complaint, focused on UHD’s policies
regarding adjunct faculty member access to their e-mail accounts.2
In his first amended complaint, he sued Shakrokhi (Executive
Director of Information Technology at UHD), and Woods (Chief
Academic Officer of UHD). He also sought leave to add Adolfo
Santos (Administrative Assistant Chair for the Department of Social
Sciences at UHD). In this complaint, De Mino reiterated his
complaints regarding the compensation and treatment of adjuncts, as
well as e-mail account access, specifying that adjuncts do not have
access to their e-mail accounts during any semester they are not
teaching, including the summer. He also reiterated that he was
2
Specifically, De Mino alleged that when he tried to use
the e-mail system to complain about UHD compensation and
treatment of adjuncts, he was denied access to his e-mail
account.
No. 05-21098
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denied access to his e-mail account in retaliation for his
attempted use of the system to distribute complaints about the UHD
administration. In this first amended complaint, he added the
allegation that, in retaliation for the current lawsuit, UHD cut
his course load from three to two classes, in an effort to deprive
him of benefits,3 terminate his active status in the Teacher
Retirement System, and reduce his pay. He further alleged a denial
of equal protection in that adjunct faculty are paid less, given
fewer benefits, denied opportunities in university governance, and
given fewer supporting resources in comparison to full-time,
tenure-track faculty members. Lastly, he challenged the
constitutionality of Texas statutes that prohibit the unionization
of state employees and the ability of non-citizens to become labor
union officials or organizers.
The district court granted defendants’ motions for summary
judgment on the First Amendment and Equal Protection claims, and
ruled that plaintiff lacked standing to challenge the Texas
statutes at issue. Further, they awarded costs to the defendants.
Discussion
I. First Amendment Claims
This court reviews the grant of summary judgment de novo,
applying the same standard as the lower court. Gowesky v. Singing
River Hospital Systems, 321 F.3d 503, 507 (5th Cir. 2003).
3
At UHD, adjuncts who only teach two classes are not
eligible for certain benefits.
No. 05-21098
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Appellant urges that UHD violated his First Amendment rights
by restricting his e-mail account access in an effort to silence
his complaints about the university and further contends that UHD
retaliated against him for exercising his rights in bringing this
lawsuit.
A. First Amendment Violation
Appellant bases his assertions mainly upon three actions by
UHD IT officials: (1) disallowing adjuncts access to e-mail
accounts during the semesters they do not teach, including the
summer; (2) restricting adjuncts’ sending of e-mails; and (3)
implementing a spam filter.
The Supreme Court has held that a public school system’s
internal mail system does not constitute a state-created public
forum. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 103
S. Ct. 948, 955-56 (1983). Because of this, “[i]n addition to time,
place, and manner regulations, the state may reserve the forum for
its intended purposes, communicative or otherwise, as long as the
regulation on speech is reasonable and not an effort to suppress
expression merely because public officials oppose the speaker’s
view.”
Id. at 955, citing United States Postal Service v.
Greenburgh Civic Ass’n, 101 S.Ct 2676, 2684 (1981); see also Chiu
v. Plano Indep. School Dist.,
260 F.3d 330, 356 (5th Cir. 2001)
(“Identity-based and subject matter distinctions in a nonpublic
forum are permissible so long as they are not a covert attempt to
suppress a particular viewpoint....”). As such, any limitations
No. 05-21098
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imposed must be reasonable in light of the purpose served by the
forum. Perry, 103 S. Ct. at 957;
Chiu, 260 F.3d at 356.
Defendant Shahrokhi presented competent summary judgment
evidence to show there was no First Amendment violation in this
case.4 The disputed restrictions and the spam filter were
uniformly applied system-wide and were not content-based; there is
no evidence to suggest that the goal of these policies was to
suppress any viewpoint. Further, these UHD polices were reasonable
in light of the need to control the quantity of data stored on the
system and to filter data coming into the system. Doing away with
these policies would “substantially interfere with the
activities...of the school.” Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, 513 (1969).
B. Retaliation
Appellant argues that his course load was reduced in
retaliation for filing this lawsuit. To prove a First Amendment
retaliation claim under 42 U.S.C. 1983, a plaintiff must show: (1)
he suffered an adverse employment action; (2) his speech involved
4
As to the deprivation of access during non-teaching
semesters, defendant testified that the system is programmed with
the dates of an adjunct’s teaching service, after which the
system automatically cancels access. As to the restrictions on
the ability to send e-mails, defendant testified that rules had
long been promulgated to limit users to 20 megabytes of memory.
Users are warned as they approach this limit and after exceeding
it are restricted from sending e-mails. As to the spam filter,
defendant testified that it was implemented to conserve space on
the system. Defendant testified that these restrictions and the
filter were applied uniformly.
No. 05-21098
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a matter of public concern; (3) his interest in commenting on such
matters outweighed the government employer’s interest in promoting
efficiency; and (4) his speech motivated the adverse employment
action. Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004).
Assuming arguendo that the speech at issue is a matter of
public concern, plaintiff has not raised a disputed fact issue
material to deciding whether the change in his teaching load in the
fall semester of 2004 resulted from his speech. Beattie v. Madison
County School Dist., 254 F.3d 595, 600 (5th Cir. 2001)(“Summary
judgment should be granted...when the nonmoving party fails to
meets its burden to come forward with facts and law demonstrating
a basis for recovery that would support a jury verdict.”). The
defendant presented summary judgment evidence via the affidavit of
Adolfo Santos to defeat the causation element. Defendant showed
that it, whenever possible, limits adjuncts to teaching two
sections in order to avoid the costs of benefits. In Fall 2004,
Santos assigned nine of ten adjuncts only two classes.5 In Spring
2006, no adjunct was allowed to teach more than two classes.
Appellant was treated no differently than any other adjunct
following his filing of this lawsuit. Plaintiff failed to combat
defendant’s evidence with any of his own. Therefore, summary
judgment in favor of UHD was proper. Alexander v. Eeds,
392 F.3d
138 (5th Cir. 2004) provides, “Any factual controversy will be
5
The one adjunct allowed to teach three classes had
seniority and was willing to teach on Saturday.
No. 05-21098
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resolved in the nonmovant’s favor, but only ‘when both parties have
submitted evidence of contradictory facts.’” Id. at 142, citing
Olabisiomotosho v. City Houston,
185 F.3d 521, 525 (5th Cir. 1999).
II. Equal Protection
Appellant argues that UHD violated the Equal Protection Clause
of the Fourteenth Amendment by treating adjuncts less favorably
than tenured or tenure-track professors. To establish an Equal
Protection claim, the plaintiff must prove that similarly situated
persons were treated differently. Muhammed v. Lynaugh, 966 F.2d
901, 903 (5th Cir. 1992). In this case, adjunct faculty are not
similarly situated to full-time faculty. Adjunct faculty typically
teach fewer classes than tenured or tenure-track professors. They
are not held to the same expectations regarding publication.
III. Standing to Challenge Texas Statutes
A. Section 617.002
Appellant argues that the district court erred by determining
he lacks standing to challenge the constitutionality of Texas
Government Code § 617.002, which prohibits a political subdivision
from: (1) entering a collective bargaining agreement with a labor
organization regarding wages, hours, or conditions of employment of
public employees; and (2) recognizing a labor organization as the
bargaining agent for a group of public employees.
Texas law makes it clear that the aforementioned provisions do
not impair the right of public employees to present grievances,
No. 05-21098
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including through a representative.6 A representative includes
unions or union members. Sayre v. Mullins, 681 S.W.2d 25 (Tex.
1984). Thus, the statutes in question do not prevent the
unilateral presentation of grievances by employees, regardless of
their use or non-use of a union. Moreau v. Klevenhagen,
956 F.2d
516, 520 (5th Cir. 1992). The statutes, instead, merely prohibit
bilateral agreements between political subdivisions and bargaining
agents.
Id.
As such, the district court was correct in ruling that De Mino
lacks standing. To have standing, a plaintiff must demonstrate:
(1) an injury-in-fact; (2) that is traceable to the defendant’s
actions; and (3) that will be redressed by a favorable decision.
Delta Commercial Fisheries Ass’n v. Gulf of Mexico Fishery Mgmt.
Council,
364 F.3d 269, 272 (5th Cir. 2004). The interpretation of
the statute will not preclude appellant from presenting grievances
or organizing to advocate for better conditions for adjuncts.
Instead, its effect is aimed at the university, by forbidding it to
bargain with certain groups.
B. Section 101.109
Appellant argues the district court erred in ruling that he
lacked standing to challenge the constitutionality of Texas Labor
Code § 101.109. At the district court level, appellant did not
allege that UHD invoked the provision to prevent any activity he
6
A representative includes unions or union members.
No. 05-21098
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wished to pursue. He also failed to allege or present evidence
that he sought to be a union officer or organizer, i.e., one
“...who, for financial consideration solicits membership in a labor
union or members for a labor union.” Tex. Lab. Code. Ann. §
101.101(2). Therefore, we find that plaintiff waived his challenge
to this statute; even if he had presented evidence at the district
court, we would find no error in the district court’s ruling.
IV. Award of Costs
Appellant argues that the district court abused its decision
by awarding $444.40 in costs for a 101 page transcript from the
hearing in another case to clarify the relationship between De Mino
and the Faculty Rights Coalition. He argues that the same
information was included in his complaint and could have been
verified by searching the Harris County website where D/B/A
registration was posted.
Rule 54(d)(1) provides for recovery of costs by the prevailing
party. Fed. R. Civ. P. 54(d)(1). 28 U.S.C. § 1920 provides a
listing of costs that may be taxed against a losing party, one of
which is “fees for...copies of papers necessarily obtained for use
in the case.” Here, defendant obtained the transcript for use in
the case. The district court did not abuse its discretion.
For the foregoing reasons, we AFFIRM.
