Robinson v. Dallas County Community College District

Filing 51

MEMORANDUM OPINION AND ORDER: The District's 33 motion for summary judgment is granted, Robinson's First Amendment retaliation claim is dismissed, and this action is dismissed with prejudice by judgment filed today. The District has file d 47 objections to some of the summary judgment evidence that Robinson offers in opposition to the District's motion. Because consideration of this evidence does not affect the court's decision, the court overrules these objections as moot. (Ordered by Judge Sidney A Fitzwater on 5/20/2016) (trk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
EUGENE ROBINSON,
Plaintiff,
VS.
DALLAS COUNTY COMMUNITY
COLLEGE DISTRICT,
Defendant.

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§ Civil Action No. 3:14-CV-4187-D
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MEMORANDUM OPINION
AND ORDER
In this action by a former employee of defendant Dallas County Community College
District (“District”), the District moves for summary judgment on plaintiff’s sole remaining
claim: that the District violated his First Amendment rights (remediable under 42 U.S.C. §
1983) when it terminated his employment as a foreign language lab coordinator and later
chose not to hire him for a full-time faculty position. Concluding that a reasonable jury could
not find in plaintiff’s favor on this claim, the court grants the District’s motion and dismisses
this action by judgment filed today.
I
This case is the subject of two prior memorandum opinions and orders. See Robinson
v. Dall. Cnty. Cmty. Coll. Dist., 2015 WL 1879798 (N.D. Tex. Apr. 24, 2015) (Fitzwater, J.)
(“Robinson I”); Robinson v. Dall. Cnty. Cmty. Coll. Dist., 2015 WL 5123347 (N.D. Tex.
Sept. 1, 2015) (Fitzwater, J.) (“Robinson II”). The court will therefore recount only the
background facts and procedural history that are pertinent to this decision.

Plaintiff Eugene Robinson (“Robinson”) worked as a foreign language lab coordinator
in the World Languages department at Brookhaven College (“Brookhaven”), a college in the
District.1 Robinson had voiced his concerns about the District and Brookhaven’s spending
since 2011. In 2014 Robinson became concerned that the District, through its Early College
High School program (a program where high school students receive dual credit for taking
high school and college classes at Brookhaven), was spending community college district tax
revenue and tuition revenue to support students of public independent school districts, rather
than to benefit tuition-paying students of the District. Because of his concerns, when two
seats on the District’s Board of Trustees (“Board”) were up for election on May 10, 2014,
Robinson supported candidates who challenged the incumbents. Leading up to the election,
Robinson engaged in various activities to support the two challengers, including publically
posting on Facebook, displaying posters and handing out flyers for two days at the March
2014 Dallas Gun Show, informing his fellow professional support staff at Brookhaven about
the election, emailing fellow supporters to coordinate campaign strategies, and campaigning
at three different polling locations on election day.
The World Languages department’s lab space was not being used to capacity in 2014,
at least in part because the state had eliminated the lab requirements for foreign language

1

In deciding this motion, the court views the evidence in the light most favorable to
Robinson as the summary judgment nonmovant and draws all reasonable inferences in his
favor. See, e.g., Owens v. Mercedes-Benz USA, LLC, 541 F.Supp.2d 869, 870 n.1 (N.D. Tex.
2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l Ass’n v. Safeguard Ins. Co., 422 F.Supp.2d
698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).
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courses, which decreased the credit-hour requirement for foreign language courses from four
to three hours. Robinson attended one of Brookhaven President Thomas Chesney’s
(“President Chesney’s”) regularly held open-forum meetings (“2014 Open-Forum
Meeting”),2 where Brookhaven employees could discuss issues or voice concerns, and he
complained about the decision to decrease the credit-hour requirement for foreign language
courses.
When Brookhaven received its budget allocation in March 2014, it was informed that
its funding would be decreased by more than $1.2 million for the 2014-2015 academic year,
due at least in part to the projected decrease in enrollment and a lost contract that resulted in
a loss of credit and non-credit contract hours. As a result, after identifying discretionary
budget cuts, President Chesney announced that Brookhaven would have to identify another
$753,000 in cuts to balance the budget by May 23, 2014. President Chesney set a time line
and created workgroups to identify budget cuts by mid-April. Grant Sisk (“Dean Sisk”), the
Dean of Brookhaven’s World Languages department (and Robinson’s direct supervisor),
recommended, among other things, eliminating the three language lab coordinator positions
in the World Languages department, one of which Robinson held, and one lab assistant in
the Communications department as part of the consolidation of the World Languages and
Communications labs. Roger Bennett (“Vice President Bennett”), the Vice President of
Academic Affairs and Student Success at Brookhaven, concurred with Dean Sisk’s decision

2

Robinson cannot recall the date of this meeting, but “[his] recollection is it was
before [he] was terminated.” D. App. 24.
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to eliminate these positions. And at a meeting on May 15, 2014, President Chesney and the
Brookhaven Vice Presidents discussed and approved budget cuts identified by each
department, including the elimination of the four positions recommended by Dean Sisk.
On June 4, 2014 Vice President Bennett informed Robinson that his position was
being eliminated due to “[b]udget cuts.” D. App. 15. He delivered to Robinson a letter from
President Chesney stating that his position was being eliminated, effective August 31, 2014,
due to “the current fiscal conditions of the college and the need to reorganize the work load
in the World Languages department.” Id. at 65. Robinson maintains, however, that the 2014
budget situation was an excuse, not a legitimate reason, for terminating his position.3 Vice
President Bennett also told Robinson that he and Dean Sisk had looked for other positions
at Brookhaven for Robinson to fill, and that Robinson could apply for an open advisor
position that would pay the same as his language lab coordinator position. Robinson was not
interested in the advisor position because he had never before worked as an advisor, and he
believed that the advisors’ supervisor, Oscar Lopez, probably would not hire him due to an
earlier conflict between the two. Robinson did not apply for the advisor position.
After learning that his position was being eliminated, Robinson began communicating
with Bill Metzger (“Metzger”), a member of the Board, to express his concerns about the
District and Brookhaven’s spending. Additionally, on June 24, 2014 Robinson sent an email

3

Robinson contends that all of the other Brookhaven employees whose jobs were
discontinued were hired elsewhere at Brookhaven or moved into new positions. He also
maintains that it was necessary for additional hours of pay for other employees to be incurred
to cover the work that he had previously performed.
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(“June 2014 Email”) to his fellow professional support staff employees at Brookhaven
regarding the May 2016 Board elections, which was forwarded to President Chesney and
Vice President Bennett. Later that year, a former Brookhaven colleague, Elena Webb
(“Webb”), informed Robinson that there was a possible opening for a substitute instructor
at Brookhaven, but Dean Sisk did not permit Robinson to fill this opening. Robinson also
applied for several4 full-time faculty positions at various campuses in the District, including
one at Brookhaven, but did not receive any job offers.
Robinson originally sued the District to recover under 42 U.S.C. § 1983 for violating
his First Amendment rights; for breach of contract; and for violating the Texas
Whistleblower Act (“Whistleblower Act”). In Robinson I the court granted the District’s
motion to dismiss Robinson’s claims for breach of contract and violation of the
Whistleblower Act, concluding that Robinson had failed to allege facts sufficient to state
plausible claims. See Robinson I, 2015 WL 1879798, at *1-2. Robinson then filed an
amended complaint, alleging that the District violated the Whistleblower Act and his First
Amendment rights (remediable under 42 U.S.C. § 1983). In Robinson II the court granted
the District’s motion to dismiss Robinson’s Whistleblower Act claim, concluding that
Robinson had failed to allege facts sufficient to state a plausible claim. See Robinson II,
2015 WL 5123347, at *5.
The District now moves for summary judgment on Robinson’s First Amendment

4

Robinson contends that he applied for six positions, and the District maintains that
he applied for eight positions. The exact number is immaterial to the court’s analysis.
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retaliation claim (remediable under 42 U.S.C. § 1983)—his only remaining claim. Robinson
opposes the motion. He maintains that his protected speech led the District, through the
actions of President Chesney, Vice President Bennett, and Dean Sisk (collectively, the
“Brookhaven Administrators”), to retaliate against him by eliminating his position and later
choosing not to hire him for a full-time faculty position.
II
When a summary judgment movant will not have the burden of proof on a claim at
trial, it can obtain summary judgment by pointing the court to the absence of evidence on any
essential element of the nonmovant’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Once it does so, the nonmovant must go beyond his pleadings and designate specific
facts demonstrating that there is a genuine issue for trial. See id. at 324; Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the
evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant’s failure to produce proof
as to any essential element renders all other facts immaterial. See TruGreen Landcare,
L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary judgment
is mandatory when the nonmovant fails to meet this burden. Little, 37 F.3d at 1076.
III
Robinson brings a cause of action under § 1983 alleging unlawful retaliation for the
exercise of his free speech rights.
A
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To establish a First-Amendment, free-speech retaliation claim
under § 1983, a public employee must show that (1) [he]
suffered an adverse employment action; (2) [his] speech
involved a matter of public concern; (3) [his] interest in
commenting on matters of public concern outweighed the
defendant’s interest in promoting workplace efficiency; and (4)
[his] speech was a substantial or motivating factor in the
defendant’s adverse employment action.
Burnside v. Kaelin, 773 F.3d 624, 626 (5th Cir. 2014) (citing DePree v. Saunders, 588 F.3d
282, 286-87 (5th Cir. 2009); Click v. Copeland, 970 F.2d 106, 113 (5th Cir. 1992)). “If the
plaintiff makes such a showing, the employer may still avoid liability if it can ‘show[] by a
preponderance of the evidence that it would have reached the same decision . . . even in the
absence of the protected conduct.’” Babin v. Breaux, 587 Fed. Appx. 105, 115 (5th Cir.
2014) (per curiam) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977)); see also Barrow v. Greenville Indep. Sch. Dist., 2005 WL 39086, at *5 (N.D.
Tex. Jan. 7, 2005) (Fitzwater, J.), aff’d, 2007 WL 3085028 (5th Cir. Oct. 23, 2007).
Only the fourth element is contested.5 Robinson alleges that he suffered two adverse
employment actions: first, the District, through the actions of the Brookhaven
Administrators, eliminated his foreign language lab coordinator position, and, second, the

5

The District asserts that Robinson’s speech regarding the decrease in credit hours at
the 2014 Open-Forum Meeting is not a matter of public concern and thus cannot support his
free-speech claim. Robinson does not respond to this assertion or contend that his speech at
the 2014 Open-Forum Meeting constituted a matter of public concern. And he maintains that
“[o]nly the fourth element is seriously at issue.” P. Br. 14. Accordingly, the court concludes
that Robinson does not intend to rely on his speech at the 2014 Open-Forum Meeting to
support his First Amendment retaliation claim, and that the court need not therefore address
the District’s contention that this speech is not a matter of public concern.
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District later chose not to hire him as a full-time faculty member.6 The District contends that
Robinson has presented no evidence that the decisions to eliminate his position and not to
hire him as a full-time faculty member were motivated by his exercise of protected speech,
and that, even if Robinson had such evidence, the District would have reached the same
decisions regardless of whether Robinson engaged in protected speech.
B
The court will address first Robinson’s termination claim. Robinson maintains:
Misappropriating property tax revenue which was specifically
intended by law to support [District] college students and
misappropriating college student-paid tuition for the purposes of
funding and supporting the . . . Early College High School
Program was the central point of [his] political activities in 2014
and was at least a substantial or motivating factor in [the
District’s] adverse employment action.
P. Br. 15. And he alleges that “Brookhaven administration knew [he] was raising these
issues to the [Board] and to other [District] employees”; that, “as of 2014 he was also
engaging in political activity to replace board members, to try to end this”; and that “[h]e was

6

In its brief, the District posits that “Robinson cannot show that any protected speech
was a substantial or motivating factor in his termination or his failure to obtain a full-time
faculty position—the only two adverse employment actions on which he bases his freespeech claim.” D. Br. 11 (internal quotations omitted). Robinson alleges in the fact section
of his response brief—under the heading “Retaliation”—that he was not permitted to take
a substitute teaching position at Brookhaven. But Robinson does not challenge the District’s
position and does not assert that the District’s failure to hire him as a substitute teacher
constitutes an adverse employment action for purposes of his First Amendment retaliation
claim. The court therefore concludes that Robinson does not allege that his failure to obtain
the substitute position constitutes an adverse employment action; rather, Robinson offers his
failure to obtain a substitute position only in support of his other claims of adverse
employment actions.
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promoting candidates who would oppose and put a stop to Brookhaven’s administration
taking money from college funds and spend[ing] it on public school students.” Id. Robinson
also contends that
the overwhelming evidence is that the budget situation in 2014
did not present a legitimate reason for terminating [his] position
so much as an excuse. All of the other Brookhaven employees
whose jobs were discontinued were nevertheless hired elsewhere
at the college or moved into ready-made new positions. The job
in advising was never a serious offer at all, given previous
conflicts between [him] and Oscar Lopez. Additional hours of
pay for other employees had to be incurred to cover the work
[he] had previously done.
Id. at 14. Finally, Robinson asserts that “the District’s self-serving disavowals of any
knowledge of [his] protected speech are sufficiently countered by [his] testimony regarding
the scope and breadth of his protected political activity,” and that, “[g]iven that he
communicated his concerns to many persons who were in routine meetings with all levels
of Brookhaven administrators, it is unlikely in the extreme that only one of [his] political
emails [(i.e., the June 2014 Email)] made its way to [the Brookhaven Administrators].” Id.7

7

Robinson also contends that President Chesney admitted in his declaration that he
was first aware of Robinson’s concerns regarding the 2014 Board elections and
Brookhaven’s spending in late June, after Robinson was informed that his position was being
eliminated. Robinson maintains that “[e]ven assuming, arguendo, that Brookhaven’s
administrators didn’t know before June 4, 2014 of Robinson’s protected speech and activity,
they knew during the final months of his employment,” and “[n]o effort was made to rehire
him or to reassign him.” P. Br. 19. But the fact that Brookhaven Administrators learned of
Robinson’s exercise of his protected speech after they decided to eliminate his position and
after they informed him that his position was being eliminated would not permit a reasonable
jury to find that Robinson’s exercise of his protected speech motivated their decision to
eliminate his position. Additionally, Robinson cites no cases, and the court is aware of none,
holding that if an employer decides to eliminate an employee’s position, but then later learns
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The District posits, however, that Robinson has failed to present any evidence that the
Brookhaven Administrators knew of his speech regarding budget issues, misspending, or
Board elections, before they decided to eliminate his position. The District also relies on
evidence showing that the Brookhaven Administrators were unaware of any of Robinson’s
speech or actions regarding the May 2014 Board elections when they decided to eliminate
his position. It points out that Robinson admitted that he never communicated with the
Brookhaven Administrators about the May 2014 Board election; he has no evidence that the
Brookhaven Administrators were aware of his Facebook posts or his activities at the March
2014 Dallas Gun Show; and the Brookhaven Administrators did not directly receive any of
his emails regarding the May 2014 Board elections before his position was eliminated. The
District also points to the Brookhaven Administrators’ declarations that aver that, before
eliminating Robinson’s position, they were unaware of any communications by Robinson
regarding the May 2014 Board elections, his participation at any gun show, or his postings
on Facebook; that they were not friends with Robinson on Facebook; and that the decision
to eliminate Robinson’s position “was based solely on Brookhaven’s financial and business
needs, and had nothing at all to do with [him] personally.” D. App. 103, 110, 114. Finally,
the District contends that Robinson’s communications with Metzger, and his June 2014
Email (which was forwarded to the Brookhaven Administrators), occurred after Robinson
was notified that his position was being terminated and therefore could not have influenced

that the employee engaged in protected speech, the employer must rehire or reassign the
employee.
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the District’s decision to eliminate his position.
The court agrees with the District. It is not enough to allege that “it is unlikely in the
extreme” that only one of Robinson’s emails (i.e., the June 2014 Email) reached the
Brookhaven Administrators, that “it was definitely possible” that Robinson’s concerns were
reported to one of the Brookhaven Administrators directly or indirectly, or that Robinson
“absolutely believe[s]” that the Brookhaven Administrators saw his Facebook posts about
the May 2014 Board elections. See, e.g., Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.
2002) (citing Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996))
(“‘[C]onclusory allegations, speculation, and unsubstantiated assertions are inadequate to
satisfy’ the nonmovant’s burden in a motion for summary judgment.”). A reasonable jury
could only find from the summary judgment evidence that Robinson regularly spoke out
about his views on misspending and misuse of funds at Brookhaven to individuals other than
the Brookhaven Administrators, and that some of these individuals had “direct access” to
President Chesney, met with President Chesney “regularly,” or were “in routine meetings
with all levels of Brookhaven administrators.” P. Br. 5, 14. A jury could not reasonably
infer from this evidence that the individuals who heard Robinson’s concerns reported his
protected speech to one of the Brookhaven Administrators, or that one or more of the
Brookhaven Administrators happened to overhear these individuals discussing Robinson’s
protected speech, and, as a result, decided to eliminate Robinson’s position substantially
because of his protected speech. Robinson has failed to adduce summary judgment evidence
from which a jury could reasonably infer that the Brookhaven Administrators were even
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aware of his protected speech before they decided to eliminate his position, much less that
a causal connection exists between Robinson’s exercise of his protected First Amendment
right and the District’s decision to eliminate his position. See Whiting v. Univ. of S. Miss.,
451 F.3d 339, 350-51 (5th Cir. 2006) (explaining that, because defendants argued that
plaintiff had not offered any evidence that her conduct was a motivating factor in her
discharge, “[t]he question focuses on whether a causal connection existed between her
conduct and her denial of tenure,” concluding that plaintiff “offer[ed] nothing but her own
beliefs as foundation for this causal chain,” and holding that plaintiff failed to survive
summary judgment on her First Amendment retaliation claim).
Accordingly, the court grants the District’s motion for summary judgment as to this
claim, and Robinson’s First-Amendment retaliation claim based on the elimination of his
position is dismissed.
C
The court now turns to Robinson’s failure to hire claim. Robinson maintains that,
after his position was eliminated, he was denied interviews for numerous full-time faculty
positions at several campuses in the District—one of which was Brookhaven—because the
Brookhaven Administrators “blackballed [him] from future employment in the District.” D.
App. 18. Robinson avers that “he was well qualified and experienced by virtue of his
Master’s Degree in English Literature and 14 years of adjunct faculty English as a Second
Language teaching experience in the District.” P. Br. 12. He asserts that “Brookhaven
denied acceptance of his application on the excuse that he was not qualified to teach the
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subject that he had taught already for 14 years,” and when “[he] challenged Brookhaven HR
regarding his credentials, they admitted that he was qualified, and accepted his application,”
but “subsequently denied him an interview on April 15, 2015.” Id. Robinson also contends
that Webb informed him in late 2014 that there was a possible opening for a substitute
instructor at Brookhaven, that Webb asked Dean Sisk if Robinson could fill the position, and
that Dean Sisk refused to permit Robinson to substitute, stating that someone had been
“turning us in to the board for shady practices.” P. App. 32.
The District responds that Robinson admitted in his deposition that the Brookhaven
Administrators did not work at any of the campuses within the District, other than at
Brookhaven, where he applied for full-time employment, and that he has no knowledge or
evidence that the Brookhaven Administrators did anything to prevent him from being hired
for these positions. With respect to the one position at Brookhaven, the District contends that
Vice President Bennett retired on January 31, 2015, and that Robinson admitted that
President Chesney and Dean Sisk would not have been directly involved with the
interviewing or hiring decision. The District also points to the Brookhaven Administrators’
declarations, in which they aver that they did not know that Robinson had applied for any
faculty positions at Brookhaven or elsewhere in the District after he was terminated; that they
never spoke with any District employee about whether Robinson should be hired as a faculty
member; and that they never made any decisions regarding hiring Robinson as a faculty
member. The District further contends that Robinson’s qualifications are irrelevant to the
court’s analysis, but, even if they were relevant, Robinson was not well qualified given that
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he was applying for a full-time faculty position, even though he had only been a part-time
faculty member for the past 14 years. The District also points out that Robinson admitted
that he does not know whom the District hired over him or the credentials of those who were
hired.
The court concludes that Robinson has failed to establish a genuine issue of material
fact regarding whether his exercise of protected speech was a substantial or motivating factor
in the District’s decision not to hire him as a full-time faculty member following his
termination. Even if Dean Sisk denied Robinson the substitute teaching position, Robinson
admitted, “I don’t think [Dean Sisk] would have been involved directly” in the interview or
selection process of the full-time faculty position at Brookhaven because “[t]hat was not his
division.” D. App. 31. Robinson has failed to provide any evidence that would enable a
reasonable jury to find that the Brookhaven Administrators played any role in the decisions
not to hire him as a full-time faculty member. He does not even allege who made the
decisions not to hire him at campuses other than Brookhaven, much less offer any evidence
that those unknown decisionmakers were motivated by his exercise of protected speech. A
jury could not reasonably infer from the mere fact that Robinson was experienced and
qualified that the District chose not to hire him for a full-time faculty position substantially
because he engaged in protected speech. And the only reasonable inference that can be
drawn from the facts surrounding the initial denial of Robinson’s application is that someone
in Brookhaven’s Human Resources department denied his application, mistakenly believing
that he was not qualified, but then accepted his application upon learning of the mistake. A
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reasonable jury therefore could not find that Robinson’s exercise of his protected speech was
a substantial or motivating factor in the District’s decisions not to hire him as a full-time
faculty member. See Whiting, 451 F.3d at 350-51; Ramsey, 286 F.3d at 269.
Accordingly, the court grants the District’s motion for summary judgment as to this
claim, and Robinson’s First-Amendment retaliation claim based on the District’s decisions
not to hire him as a full-time faculty member is dismissed.8
*

*

*

For the reasons explained, the District’s motion for summary judgment is granted,
Robinson’s First Amendment retaliation claim is dismissed, and this action is dismissed with
prejudice by judgment filed today.
SO ORDERED.
May 20, 2016.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

8

The District has filed objections to some of the summary judgment evidence that
Robinson offers in opposition to the District’s motion. Because consideration of this
evidence does not affect the court’s decision, the court overrules these objections as moot.
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