Faculty Rights Coalition v. Shahrokhi , 204 F. App'x 416 ( 2006 )


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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    this opinion should not be published and is not precedent except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.