Salinas v. University of Texas-Pan American , 74 F. App'x 311 ( 2003 )


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  •                                                       United States Court of Appeals
    Fifth Circuit
    F I L E D
    UNITED STATES COURT OF APPEALS             July 21, 2003
    For the Fifth Circuit
    Charles R. Fulbruge III
    Clerk
    No. 02-41480
    OSCAR SALINAS,
    Plaintiff-Appellant,
    VERSUS
    UNIVERSITY OF TEXAS-PAN AMERICAN, ET AL.,
    Defendant-Appellees.
    Appeal from the United States District Court
    For the Southern District of Texas
    (M-99-197)
    Before EMILIO M. GARZA and DENNIS, Circuit Judges, and HEAD,
    District Judge.*
    PER CURIAM:**
    Plaintiff Oscar Salinas appeals from the district court’s
    dismissal of his 
    42 U.S.C. § 1983
     claim against the University of
    *
    District Judge of the Southern District of Texas sitting by
    designation.
    **
    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    opinion should not be published and is not precedent except under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-
    Texas-Pan American (UTPA) and several of its employees, alleging
    that they violated his First and Fourteenth Amendment rights.
    Salinas also appeals from the district court’s grant of summary
    judgment to defendants on his Texas state law claims alleging
    intentional infliction of emotional distress, civil conspiracy,
    invasion of privacy, and gross negligence.         Finally, Salinas
    appeals the district court’s dismissal of claims against Norma
    Perez for failure to effect service of process.    Finding no merit
    to this appeal, we now AFFIRM the district court.
    I.   Background
    Oscar Salinas was a non-tenured lecturer in the English
    Department at UTPA, employed through a series of renewable one-year
    contracts.   In 1993 Gloria Lind, an employee in the UTPA travel
    office, accused Salinas of sexual harassment, complaining that
    Salinas would ask her out on dates and flirt with her even after
    she had indicated her lack of interest in him.    Salinas denied the
    charges, and no disciplinary action was taken against him, with the
    exception of a demand that Salinas stay away from Lind.
    Salinas’ contract at UTPA continued to be renewed for each of
    the next four years after the alleged sexual harassment incident.
    In 1996 Salinas received a poor merit rating from the lecturer
    evaluation committee in the English Department. Based on this poor
    evaluation, as well as Salinas’ failure to get along with members
    of the university administration, UTPA notified Salinas in July
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    1997 that his employment with the university would not be renewed
    for the 1997-98 academic year.             Pursuant to UTPA policy, notice,
    but      no   hearing,    was   provided     in   connection   with   Salinas’
    termination.
    On July 6, 1999 Salinas filed suit in the federal district
    court for the Southern District of Texas alleging violations of
    federal and state rights stemming from his termination.                    The
    district court first granted the motion to dismiss made by UTPA and
    its employees acting in their official capacity on grounds of
    Eleventh Amendment sovereign immunity.1             The district court also
    dismissed Salinas’ § 1983 claims against the remaining defendants
    for failure to state a claim.                Subsequently, it granted the
    university employee defendants summary judgment on Salinas’ state
    law tort claims.         Finally, the district court dismissed the claims
    against non-university defendant Norma Perez on grounds that the
    service requirements of Federal Rule of Civil Procedure 4(e) and
    4(m) had not been met.
    Salinas timely appealed.
    II.   Analysis
    A.       Standard of Review
    We review the district court’s grant of a Rule 12(b)(6) motion
    to dismiss de novo.        S. Christian Leadership Conference v. Supreme
    1
    Because Salinas does not adequately brief his appeal of this
    ruling, we consider the issue waived. Raven Servs. Corp. v. NLRB,
    
    315 F.3d 499
    , 504 n.7 (5th Cir. 2002).
    -3-
    Ct. of La., 
    252 F.3d 781
    , 786 (5th Cir. 2001).               In reviewing the
    district court’s determination we must treat all facts plead as
    true,   and   should    construe   the    pleadings     in   the   manner      most
    favorable to the non-moving party.             
    Id.
       We should not grant such
    a motion unless it appears beyond doubt that there is no set of
    facts on which plaintiff is entitled to relief.                
    Id.
           To avoid
    dismissal, however, a plaintiff must plead specific facts, rather
    than conclusory allegations.           Guidry v. Bank of LaPlace, 
    954 F.2d 278
    , 281 (5th Cir. 1992).
    We review the district court’s grant of summary judgment de
    novo, employing the same criteria used in that court.                Rogers v.
    International Marine Terminals, 
    87 F.3d 755
    , 758 (5th Cir. 1996).
    Summary judgment should be granted where the record indicates no
    genuine issue of material fact, and that the moving party is
    entitled to judgment as a matter of law.              
    Id.
     In considering the
    motion we must view the evidence in the light most favorable to the
    non-moving party.         Matsushita Elec. Indus Co. v. Zenith Radio
    Corp., 
    475 U.S. 574
    , 587-88 (1986).            But “the nonmoving party must
    set forth specific facts showing the existence of a ‘genuine’ issue
    concerning every essential component of its case.” Morris v. Covan
    World Wide Moving, Inc., 
    144 F.3d 377
    , 380 (5th Cir. 1998).
    B.   § 1983 Claims
    Salinas challenges the district court’s dismissal of his §
    1983 claims.    Salinas first alleges that defendants violated his
    First   Amendment      rights   when    they   terminated    him   due    to   his
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    complaints about the lack of a hearing in which to contest Lind’s
    sexual harassment charges.         “A state may not deny an individual
    public   employment    or    benefits      related      thereto    based    on    the
    individual's    exercise     of   her     First      Amendment    right    to     free
    expression even when the individual lacks a liberty or property
    interest in the employment or related benefit.”                 Jones v. Collins,
    
    132 F.3d 1048
    , 1052 (5th Cir. 1998).                To formulate a valid § 1983
    claim alleging a First Amendment violation, Salinas must allege
    that: (1) his speech related to matters of public concern; (2) his
    interest in expressing these comments outweighed the defendants’
    interest in efficient management of its services; and (3) the
    expression     of   speech   caused       retaliatory      acts    of     which    he
    complained.    Id. at 1053.       Here, Salinas does not allege specific
    facts suggesting that his speech related to the sexual harassment
    charge resulted in his dismissal.               The four years which passed
    between his speech and termination precludes such a finding. Clark
    Cty. School District v. Breeden, 
    532 U.S. 268
    , 274 (2001) (holding
    that temporal distance between a protected activity and complained
    of action can alone prevent a finding of liability).
    Salinas    next   argues      that       the    district    court    erred     in
    dismissing his due process claims.             To the extent that Salinas is
    alleging that UTPA violated the Fourteenth Amendment by terminating
    his employment without a hearing, such a claim is precluded by the
    fact that Salinas had no expectation of continued employment, and
    therefore no property interest.           Bd. of Regents of State Colleges
    -5-
    v. Roth, 
    408 U.S. 564
    , 578 (1972).      An employer can be held liable
    if it discharges an employee in a manner that does special harm to
    the employee’s reputation without giving him an opportunity to
    clear his name.      Rosenstein v. City of Dallas, 
    876 F.2d 392
    , 395
    (5th Cir. 1989).      But to state such a claim, defamatory charges
    must be made in connection with the termination, 
    id.,
     and here
    Salinas does not allege that UTPA or its employees made any such
    charges in connection with his termination.2         Accordingly, the
    district court properly dismissed this claim as well.
    C.       State law claims
    Salinas next appeals the district court’s grant of summary
    judgment to the UTPA defendants on his state law claims alleging
    intentional infliction of emotional distress, civil conspiracy,
    invasion of privacy and gross negligence.3         The district court
    found that all of these claims were barred by the two-year statute
    of limitations in Texas for such claims.       TEX. CIV. PRAC. & REM.
    CODE § 16.003(a). The district court alternatively concluded that
    Salinas had failed to adduce evidence sufficient to create a
    genuine issue of material fact on the claims.
    2
    Salinas does make the conclusory allegation that UTPA did not
    renew his contract because it believed he was a “homicidal sex
    maniac,” but does not allege that UTPA made any such charges when
    not renewing his contract.
    3
    Salinas provides no more than scant briefing on his appeal of
    the district court’s ruling on his gross negligence claim, and we
    consider appeal of that issue waived. Raven Servs. Corp., 
    315 F.3d at
    504 n.7.
    -6-
    While somewhat cryptic, Salinas appears to be arguing that the
    statute of limitations ruling was incorrect because his termination
    occurred within two years of the date of the filing of his
    petition.   Salinas does not allege his termination as a fact in
    support of his invasion of privacy claim, however.             Lind’s alleged
    unauthorized entry to his apartment, which forms the basis of
    Salinas’ privacy claim, took place more than five years before he
    filed suit. Accordingly, we agree with the district court that the
    invasion of privacy claim is time barred.
    As for the remaining claims, mindful of our obligation to make
    all inferences for the non-moving party at the summary judgment
    stage, we find it at least arguable that Salinas’ termination was
    a part of the complained of conduct underlying these claims.
    Accordingly, we will consider the merits of the remaining claims.
    For a plaintiff to prove intentional infliction of emotional
    distress in Texas, he must show: (1) intentional or reckless
    conduct; (2)   that     is   extreme    or    outrageous;    (3)   that   caused
    emotional   distress;    and   (4)     that   was   severe   in    nature.   GTE
    Southwest v. Bruce, 
    998 S.W.2d 605
    , 611 (Tex. 1999); Standard Fruit
    & Vegetable Co. v. Johnson, 
    985 S.W.2d 62
    , 65 (Tex. 1998); Twyman
    v. Twyman,
    855 S.W.2d 619
    , 621 (Tex. 1993).              The district court
    found that Salinas had failed to introduce a genuine issue of
    material fact as to whether the UTPA defendants’ behavior was
    extreme or outrageous, and we agree.           Salinas complains of run-of-
    the-mill employment actions that we have held are not actionable
    -7-
    under intentional infliction of emotional distress.              Johnson v.
    Merrell Dow Pharmaceuticals, Inc., 
    965 F.2d 31
    , 34 (5th Cir. 1992)
    (per curiam).
    Likewise, Salinas has not raised a genuine issue of material
    fact on elements of his civil conspiracy claim.             To prove civil
    conspiracy Salinas must show: (1) two or more persons; (2) an
    object to be accomplished; (3) a meeting of the minds on the object
    or course of action; (4) one or more unlawful, overt acts, and (5)
    damages as a proximate result.             Massy v. Armco Steel Co., 
    652 S.W.2d 932
    , 934 (Tex. 1983); Chevalier v. Animal Rehabilitation
    Center, Inc., 
    839 F.Supp. 1224
    , 1230 (N.D. Tex. 1993). Salinas has
    pointed to nothing in the record indicating there was a meeting of
    the minds   between     defendants   to    oppress   or   humiliate   him   as
    alleged, making the district court’s grant of summary judgment
    correct.
    D.   Claims Against Norma Perez
    The district court dismissed all claims against defendant
    Norma Perez on grounds that Salinas failed to serve a complaint on
    Perez in the methods prescribed by Rule 4(e) of the Federal Rules
    of Civil Procedure within 120 days of the filing of the complaint.
    FED. R. CIV. P. 4(m).    On appeal Salinas argues that Rule 4(e) does
    not provide the standard by which to determine whether service of
    process has been effected; rather, he asserts that compliance with
    Rule 4(c) is all that is required.         Rule 4(c), however, simply sets
    out who may effect process, without discussion of the method of
    -8-
    service.    FED. R. CIV. P. 4(c).     Rule 4(e) provides the required
    method of service for persons from whom a waiver has not been
    obtained.   As Salinas did not meet these requirements with Perez
    within 120 days of filing his complaint, and did not show good
    cause for his failure to do so, dismissal of his claims was
    appropriate.    McGinnis v. Shalala, 
    2 F.3d 548
    , 550 (5th Cir. 1993)
    (per curiam).
    III.   Conclusion
    The judgment of the district court is AFFIRMED.
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