Wetherbe v. Texas Tech University System et al
Filing
32
Memorandum Opinion and Order granting 15 Motion to Dismiss filed by Lance Nail, PH.D, Texas Tech University System. (Ordered by Judge Terry R Means on 3/31/2016) (chmb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JAMES C. WETHERBE, PH.D
VS.
TEXAS TECH UNIVERSITY SYSTEM,
et al.
§
§
§
§
§
§
CIVIL ACTION NO. 5:15-CV-119-Y
MEMORANDUM OPINION AND ORDER
Pending before the Court is the Second Motion to Dismiss (doc.
15) filed by defendants Texas Tech University System ("TTU") and Lance
Nail, Ph.D (“Nail”) (collectively “Defendants”).
After review of
the amended complaint, the motion, the related briefs, the evidence
highlighted therein, and the applicable law, the Court concludes that
the motion should be and hereby is GRANTED.
I.
FACTUAL BACKGROUND
The present lawsuit is similar to a previous lawsuit1 plaintiff
James C. Wetherbe, Ph.D (“Wetherbe”), filed against Bob Smith, Ph.D
(“Smith”), and Lawrence Schovanec, Ph.D (“Schovanec”).
In the
original lawsuit, Wetherbe sued Smith, TTU’s provost, and Schovanec,2
TTU’s president, for their alleged retaliation against Wetherbe in
violation of the First Amendment on account of Wetherbe’s speech about
1
See Wetherbe v. Smith, 593 F.App’x 323 (5th Cir. 2014), cert. denied, 135
S.Ct. 2386 (June 1, 2015); see also Wetherbe v. Smith, No. 5:12-CV-218-A (N.D.
Tex. Dec. 4, 2012).
2
The original complaint was filed against Guy Bailey, Ph.D, the former
president of TTU. Schovanec was later substituted for Bailey as a defendant when
Schovanec became the interim president.
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tenure.
Like
the
present
case,
the
original
lawsuit
alleged
retaliation in violation of the First Amendment and sought injunctive
and declaratory relief. The present lawsuit differs from the original
lawsuit, however, because in this case Wetherbe names as defendants
TTU and Nail, who is now the dean of TTU’s Rawls College of Business.
Nail was chosen to fill the dean position that Wetherbe applied for
after he resigned from the dean search committee. In the original
lawsuit, Wetherbe claimed that, in violation of the First Amendment,
he was denied the Horn Professor nomination, denied the Deanship of
the Rawls College of Business, and removed from his position as
Associate Dean for Outreach because of his speech against tenure.
(See Wetherbe, No. 5:12-CV-218-A, Pl. 3d. Am. Compl. (doc. 51) 20-31.)
In the present lawsuit, Wetherbe alleges that he has suffered
additional adverse employment actions since the filing of his first
lawsuit in retaliation for his outside speech against tenure and the
filing of the original lawsuit.
Wetherbe uses the following chart
to demonstrate his post-lawsuit protected speech and the alleged
retaliation Defendants took against him:
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Protected Speech
TTU's Retaliatory Acts
Date Published
Articles
Published
Date of
Retaliation
Form of
Retaliation
against
Wetherbe
Dec.
Dec.
Dec.
Dec.
Dec.
7, 2012
12, 2012
13, 2012
27, 2012
28, 2012
Wall Street
Journal, Ex. 10;
Insider Higher
Ed, Ex. 9;
Huffington Post,
Ex. 8;
Texas Tribune,
Ex. 10;
Bloomberg, Ex. 7
Jan. 2013
Denied access to
Mercer
Scholarship Fund
data
Mar. 13, 2013
Harvard Business
Review, Ex. 6
May. 14, 2013
Fired from
Associate Dean
position, Chief
Executive
Roundtable,
Leadership
Council, Email
from Nail, Ex. 34
May 22, 2013
Wall Street
Journal, Ex. 5.
June 4, 2013
Removed from MBA
course, Sexual
Harassment rumor
July 14, 2013
Financial Times,
Ex. 4.
Aug. 5, 2013
Nail comment to
Wetherbe: "no
more emails, I
don't want to be
in the WSJ
Aug. 20, 2013
Replaced as
advisor for
MBA student
association
Sept. 30, 2013
Revoked Emeritus
Status for Dean's
Advisory Council
Dec. 19, 2013
Nail’s
unsupported
accusations, Nail
freezes Best Buy
grant
Jan. 2014
Stephenson Chair
to be taken away
Sept./Oct. 2013
BizEd, Ex. 3
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Jan. 2015
No travel
reimbursement for
New Mexico State
trip
Mar. 2015
Demotion to
Professor of
Practice for
teaching load
purposes
(Id. at 21-22.) In response to Wetherbe’s claims, Defendants seek
dismissal. Defendants contend that the Court lacks jurisdiction over
Wetherbe’s claims against TTU because of Eleventh Amendment immunity.
They also seek dismissal for failure to state a claim for relief,
alleging that Wetherbe has failed to adequately state any First
Amendment claims.
II.
Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal
where the Court lacks subject-matter jurisdiction. "Federal courts
are courts of limited jurisdiction" and, as a result, "the burden
of establishing federal jurisdiction rests on the party seeking the
federal forum." Howery v. Allstate Ins. Co., 253 F.3d 912, 916 (5th
Cir. 2001). "A case is properly dismissed for subject-matter
jurisdiction when the Court lacks statutory or constitutional power
to adjudicate the case." Smith v. Reg'l Transit Auth., 756 F.3d 340,
347 (5th Cir. 2014)(quoting Krim v. pcOrder.com, Inc., 402 F.3d 489,
494 (5th Cir. 2005)). A district court "has the power to dismiss for
lack of subject matter jurisdiction on any one of three separate
bases:
(1) the complaint alone; (2) the complaint supplemented by
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undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court's resolution of
disputed facts." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.
1981).
The first two methods are considered facial attacks on the
complaint's allegations of jurisdiction, in which case all factual
allegations in the complaint are taken as true.
See Chatham
Condominium Assocs. v. Century Village, Inc., 597 F.2d 1002, 1012
(5th Cir. 1979).
The later method is considered a factual attack,
which "challenges the existence of subject-matter jurisdiction in
fact, irrespective of the pleadings, and matters outside the
pleadings, such as testimony and affidavits are considered." Menchaca
v. Chrysler Credit Corp., 613 F.3d 507, 511 (5th Cir. 1980). "In
general, where subject-matter jurisdiction is being challenged, the
trial court is free to weigh the evidence and resolve factual disputes
in order to satisfy itself that it has power to hear the case." Smith,
756 F.3d at 347 (quoting Montez v. Dep't of Navy, 392 F.3d 147, 149
(5th Cir. 2004)).
TTU challenges this Court's subject-matter jurisdiction under
Rule 12(b)(1) and the Eleventh Amendment. (Defs.’ Br. Supp. Mot.
Dismiss (doc. 16) 10.)3
TTU and Nail have also asserted that
dismissal is appropriate under Rule 12(b)(6). (Defs.’ Br. at 4-15.)
3
Nail asserts qualified immunity as a defense to claims made against him
in his individual capacity. Because Wetherbe has failed to allege a violation of
a constitutional right, he cannot overcome Nail’s qualified-immunity defense. See
Wetherbe, 593 F.App’x at 326 (citation omitted).
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Because TTU has filed a Rule 12(b)(1) motion in conjunction with
another Rule 12 motion, "the Court should consider the jurisdictional
attack before addressing any attacks on the merits." Wolcott v.
Sebelius, 635 F.3d 757, 762 (5th Cir. 2011)(citation omitted).
Eleventh Amendment immunity operates as a jurisdictional bar,
depriving federal courts of power to adjudicate suits against a state.
Union Pac. R. Co. v. La. Pub. Serv. Comm'n, 662 F.3d 336, 340 (5th
Cir. 2011)(citations omitted). "The Eleventh Amendment grants a State
immunity from suit in federal court by citizens of other States, and
by its own citizens as well." Id. (citing Lapides v. Bd. of Regents,
535 U.S. 613, 616 (2002)). This "[s]overeign immunity extends to
agencies of the state government and 'alter egos' or 'arms of the
state.'" Kermode v. Univ. of Miss. Med. Ctr., 496 F.App'x 483, 487(5th
Cir. 2012)(citations omitted). "[I]nstitutions of higher education
... are considered arms of the state entitled to sovereign immunity."
Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 360 (2006).
Further,
Eleventh Amendment immunity extends to state officials sued in their
official capacities. See Will v. Michigan Dep’t of State Police, 491
U.S. 58, 71 (1989)("[A] suit against a state official in his or her
official capacity is not a suit against the official but rather is
a suit against the official's office.").
Nail, in his official
capacity, is employed as a dean at TTU, which is a state institution
of higher learning.
entitled
to
As such, Nail, in that capacity and TTU are
Eleventh
Amendment
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immunity
absent
an
applicable
exception.
There are three exceptions to Eleventh Amendment immunity: (1)
a valid abrogation of the state’s immunity by Congress; (2) waiver
or consent to suit by the state; or (3) the state's amenability to
suit under the Ex Parte Young Doctrine. See Seminole Tribe of Fla.
v. Fla., 517 U.S. 44 (1996). The Court will address each in turn.
In order to abrogate a state’s immunity, Congress must have
“unequivocally expressed its intent to abrogate the immunity” and
acted “pursuant to a valid exercise of power.” Id. at 55 (citation
omitted). Congress’s intent to abrogate “must be obvious from a clear
legislative statement.” Id. Congress has not unequivocally expressed
its intent to abrogate a state’s Eleventh Amendment immunity from
suit under 42 U.S.C. § 1983. See Quern v. Jordan, 440 U.S. 332, 337-38
(1979)(discussing Edelman v. Jordan, 415 U.S. 651 (1974)). “[A]
general authorization for suit in federal court is not the kind of
unequivocal statutory language sufficient to abrogate the Eleventh
Amendment.” Seminole Tribe of Fla., 517 U.S. at 56 (quoting Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985).
“The fact that
Congress grants jurisdiction to hear a claim does not suffice to show
Congress has abrogated all defenses to that claim.” Id. (citation
omitted).
Consequently, the abrogation exception to Eleventh
Amendment immunity does not apply in the present case.
The second exception is waiver or consent by the state.
The
Court must employ a strict standard to determine whether a state has
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waived that immunity. Port Auth. Trans-Hudson Corp. v. Feeney, 495
U.S. 299, 305 (1990). The Court will give effect to a state's waiver
of Eleventh Amendment immunity “only where stated by the most express
language or by such overwhelming implication from the text as [will]
leave no room for any other reasonable construction.” Id. (quoting
Atascadero State Hosp., 473 U.S. at 239-40). A state does not waive
its immunity by consenting to suit only in its own courts, and
“[t]hus, in order for a state statute or constitutional provision
to constitute a waiver of Eleventh Amendment immunity, it must specify
the State's intention to subject itself to suit in federal court.”
Id. (internal quotation marks and citations omitted). Wetherbe makes
no argument that TTU has waived or consented to suit. Accordingly,
the waiver or consent exception to the state’s immunity does not apply
in the present case.
The third exception to Eleventh Amendment immunity is the Ex
Parte Young doctrine. Under this doctrine, a plaintiff may overcome
the Eleventh Amendment’s jurisdictional bar and bring suit against
a state agency or official where the suit seeks prospective injunctive
relief in order to end a continuing violation of federal law. Seminole
Tribe of Fla., 517 U.S. at 73. In Wetherbe’s first amended complaint,
he states that because of violations of the First and Fourteenth
Amendments, Wetherbe is entitled to prospective injunctive relief
to prevent further constitutional violations. (Pl.’s Am. Compl. (doc.
11) 32, ¶ 112.)
Accordingly, the Court must now determine whether
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Wetherbe has stated a claim for relief for retaliation in violation
of the First Amendment.
Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal
of a complaint that fails "to state a claim upon which relief can
be granted." This rule must, however, be interpreted in conjunction
with Rule 8(a), which sets forth the requirements for pleading a claim
for relief in federal court. Rule 8(a) calls for "a short and plain
statement of the claim showing that the pleader is entitled to
relief." FED. R. CIV. P. 8(a); see also Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 508 (2002) (holding Rule 8(a)'s simplified pleading
standard applies to most civil actions).
As a result, “[a] motion
to dismiss for failure to state a claim is viewed with disfavor and
is rarely granted."
Kaiser Aluminum & Chem. Sales v. Avondale
Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied,
459 U.S. 1105 (1983) (quoting Wright & Miller, Federal Practice and
Procedure § 1357 (1969)).
The Court must accept as true all well-
pleaded, non-conclusory allegations in the complaint and liberally
construe the complaint in favor of the plaintiff. Kaiser Aluminum,
677 F.2d at 1050.
The plaintiff must, however, plead specific facts, not mere
conclusory allegations, to avoid dismissal.
LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
Guidry v. Bank of
Indeed, the plaintiff
must plead "enough facts to state a claim to relief that is plausible
on its face," and his "factual allegations must be enough to raise
ORDER ON MOTION TO DISMISS - Page 9
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a right to relief above the speculative level, . . . on the assumption
that all the allegations in the complaint are true (even if doubtful
in fact)." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 & 1974
(2007).
The Court need not credit bare conclusory allegations or
"a formulaic recitation of the elements of a cause of action."
at 1955.
Id.
Rather, "[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
In considering a motion to dismiss for failure to state a claim,
“courts must limit their inquiry to the facts stated in the complaint
and the documents either attached to or incorporated in the
complaint.” Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 101718 (5th Cir. 1996).
Documents attached to or incorporated in the
complaint are considered part of the plaintiff’s pleading. See FED.
R. CIV. P. 10(c); Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498-99 (5th Cir. 2000); Paulemon v. Tobin, 30 F.3d 307, 308-09
(2nd Cir. 1994); Hal Roach Studios, Inc. v. Richard Feiner & Co.,
896 F.2d 1542, 1555 n. 19 (9th Cir. 1990).
In Wetherbe’s first amended complaint (doc. 11), he alleges that
Defendants have “retaliated against [him] for exercising his right
to free speech ... guaranteed by the First Amendment ... in violation
of 42 U.S.C. § 1983,” which is applicable to the states through the
Fourteenth Amendment. In order to state a claim for relief under §
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1983, “a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under color
of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)(citations
omitted).
Accordingly, the Court must determine if Wetherbe has
stated a claim for relief for First Amendment retaliation under §
1983.
III. First Amendment Retaliation
The Supreme Court has made clear that public employees do not
surrender all their First Amendment rights by reason of their
employment. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (citation
omitted). Rather, the First Amendment protects a public employee's
right, in certain circumstances, to speak as a citizen addressing
matters of public concern. Id. (citations omitted). In order to
sufficiently establish a First Amendment claim under § 1983 based
on retaliation due to engaging in free speech, “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); see also West,
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487 U.S. at 48 (stating that a plaintiff must also show that the
alleged constitutional deprivation was committed by a person acting
under color of law).
Taken as true, Wetherbe’s allegations
sufficiently posit that he suffered an adverse employment action.4
Therefore, the Court must now determine whether Wetherbe’s speech
is constitutionally protected.
There are two inquiries that guide interpretation of the
constitutional protections accorded to a public employee’s speech.
Garcetti, 547 U.S. at 418(citing Pickering v. Board of Ed. of Township
High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968)).
The
first inquiry is to determine “whether the employee spoke as a citizen
on a matter of public concern.” Id. If the answer is no, the employee
has no First Amendment cause of action based on his or her employer's
reaction to the speech. Id. (citing Connick v. Myers, 461 U.S. 138,
147 (1983). If the answer is yes, then a potential First Amendment
claim arises. Id. The question then becomes whether the relevant
government entity had an adequate justification for treating the
employee differently from any other member of the general public.
Id. (citing Pickering, 391 U.S. at 568).
Thus, the Court must
determine whether Wetherbe has spoken as a private citizen on a matter
of public concern.
In Wetherbe’s original lawsuit, Wetherbe alleged a First
Amendment retaliation claim when he was denied the Horn Professorship,
4
See alleged “Retaliatory Acts” chart, supra.
ORDER ON MOTION TO DISMISS - Page 12
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the Deanship of the Rawls College of Business, and removed from the
position of Associate Dean for Outreach.
Wetherbe claimed that an
official of TTU retaliated against him because of his speech on tenure
that he expressed to TTU during the interview process for the
Deanship. In that case, the United States Court of Appeals for the
Fifth Circuit noted that Wetherbe’s allegedly protected speech fell
into two categories: (1) “public speeches and consulting work covering
the issue of tenure,” and (2) “speech while applying to be a dean
and a Horn Professor.” Wetherbe, 593 F.App’x at 327-28.
The court
held the “first category does not provide a basis for relief because
Wetherbe has not alleged that Smith was aware of this speech or that
it motivated his actions.” Id. at 328. In the present case, Wetherbe
also has not alleged how Nail became aware of Wetherbe’s views on
tenure either.
Wetherbe only states that at a strategic-planning
meeting “Dean Nail presented a new organizational chart . . . [that]
terminated Dr. Wetherbe’s position of Associate Dean for Outreach.”
(Pl.’s Am. Compl. (doc. 11) 22, ¶ 80.) Wetherbe further alleges that
during faculty meetings, “Dean Nail stated that Associate Deans should
have
tenure,”
(Id.),
and
that
Nail
“without
prior
warning,
justification or explanation followed through with Dr. Smith’s threats
and stripped Dr. Wetherbe of all his previous leadership roles[.]”
(Id. at 2.) Later in the complaint, when discussing the loss of the
Best Buy grant, Wetherbe states “Dean Nail did this harm to TTU in
retaliation against Dr. Wetherbe for his views on tenure.” (Id. at
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26, ¶ 91)(emphasis added). Further, Wetherbe alleges that in March
2015 “due to Wetherbe’s position5 on tenure, TTU informed Dr. Wetherbe
that he will be treated as a ‘Professor of Practice’ for purposes
of assigning and increasing his teaching workload.” (Id. at 27, ¶
94)(emphasis added). However, the Fifth Circuit previously addressed
this in Wetherbe’s original lawsuit and stated:
It is not enough for Wetherbe to aver that Smith acted
against him because of Wetherbe’s views on tenure. A First
Amendment-retaliation claim requires that the defendant
retaliated in response to some protected speech. There is
no freestanding First Amendment prohibition on taking
action against a public employee for his beliefs; such a
claim must be made to fit within a particular prohibition,
such as retaliation under Garcetti or political discrimination under Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287,
63 L.Ed.2d 574 (1980), and Rutan v. Rep. Party of Ill.,
497 U.S. 62, 110 S.Ct. 2729, 111 L. Ed. 2d 52 (1990).
Wetherbe, 593 F. App'x at 327.
As for the second category, the Court held that “[t]o the extent
that Wetherbe alleges retaliation for his [refusal] of tenure, he
fails to state a claim.” Wetherbe, 593 F. App’x at 327. “Wetherbe’s
speech to Smith and other university agents while he was applying
for these positions . . . does not provide a ground for a retaliation
claim because Wetherbe was not speaking as a private citizen on a
matter of public concern.” Id. at 328.
The Fifth Circuit did not address, however, whether Wetherbe
might state a claim for First Amendment retaliation for adverse
5
The Court understands Wetherbe’s use of position to mean “a point of view
adopted and held to.” Merriam-Webster’s New Collegiate Dictionary 917 (9th ed.
1991).
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employment decisions based on his outside speech on tenure. Id. at
328 (stating “Wetherbe does not claim that Smith retaliated against
him for those outside speaking activities”). Wetherbe now attempts
to make such a claim.
To answer this inquiry, the Court must
determine whether Wetherbe, in making speeches or authoring articles
against tenure, “spoke as a [private] citizen on a matter of public
concern.” Garcetti, 547 U.S. at 418 (citation omitted).
“Whether an employee's speech addresses a matter of public
concern must be determined by the content, form, and context of a
given statement, as revealed by the whole record.” Connick, 461 U.S.
at 147-48. As stated in the original lawsuit “[a] First Amendmentretaliation claim requires that the defendant retaliated in response
to some protected speech.”
Wetherbe, 593 F. App’x at 328.
“[A]n
employee is not speaking as a private citizen on a matter of public
concern when the speech aspect of the conduct is only incidental to
his performance of his job duties.” Id. at 327 (citing Commc’ns
Workers of Am. v. Ector Cty. Hosp. Dist., 467 F.3d 427 (5th Cir.
2006)). Likewise, “[r]estricting speech that owes its existence to
a public employee’s professional responsibilities does not infringe
any liberties the employee might have enjoyed as a private citizen.”
Wetherbe, 593 F. App’x at 327 (quoting Garcetti, 547 U.S. at 421-22).
“A government employee cannot claim the protection of the First
Amendment to set his own job conditions.” Id. Further, as noted in
Wetherbe’s previous lawsuit, “there is no freestanding First Amendment
ORDER ON MOTION TO DISMISS - Page 15
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prohibition on taking action against a public employee for his
beliefs.” Id.
The Court commends Wetherbe for taking a stand for his beliefs
on tenure, but under the extant circumstances his beliefs are not
constitutionally protected.
Essentially, as Defendants point out,
Wetherbe argues that because of his increased publications on limiting
tenure after the filing of his first lawsuit, his views on tenure
are now a public concern. This argument misconstrues, however, the
rationale behind the decisions protecting employee speech.
These
decisions had nothing to do with the amount of discussion on a topic
or the availability of published articles written by or about the
employee on the topic. Instead, the decisions reduced the restraints
on public-employee speech in areas that concern the public at large,
such as racial discrimination, political speech, and the like. See,
e.g., Charles v. Grief, 522 F.3d 508 (5th Cir. 2008)(noting that a
state-lottery-commission employee who sent an email to high-ranking
commission officials raising concerns about racial discrimination
and retaliation against minority employees was acting as a private
citizen on a matter of public concern); Rankin v. McPherson, 483 U.S.
378 (holding that a public employee’s speech which expressed approval
of a presidential-assassination attempt was a matter of public
concern);6 Konits v. Valley Stream Cent. High Sch. Dist., 394 F.3d
6
See also Rankin, 483 U.S. at 398 (Scalia, J., dissenting)(“The Court ...
distort[s] the concept of ‘public concern.’ It does not explain how a statement
expressing approval of a serious and violent crime--assassination of the
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121, 125 (2d Cir. 2005)(“Gender discrimination in employment is
without doubt a matter of public concern.”); compare with City of
San Diego, Cal. v. Roe, 543 U.S. 77, 84-85 (2004)(holding that outside
speech detrimental to the missions and functions of the employer was
not of public concern). Tenure is a benefit that owes its existence
to, and is generally found only in the context of, government
employment and, therefore, is not a matter of public concern. See
Garcetti, 547 U.S. at 421-22. Wetherbe’s individual decision not to
accept this benefit and to speak out against it is admirable. But,
it is not this Court’s place to determine how a university should
make employment decisions when a constitutional right has not been
violated. See Connick, 461 U.S. at 143, (“Government offices could
not function if every employment decision became a constitutional
matter.”). As such, Wetherbe’s speech on tenure is not a matter of
President--can possibly fall within that category. It simply rehearses the
‘context’ of McPherson's statement, which as we have already seen is irrelevant
here, and then concludes that because of that context, and because the statement
‘came on the heels of a news bulletin regarding what is certainly a matter of
heightened public attention: an attempt on the life of the President,’ the
statement ‘plainly dealt with a matter of public concern.’ Ante, at 2897. I
cannot respond to this progression of reasoning except to say I do not understand
it. Surely the Court does not mean to adopt the reasoning of the court below,
which was that McPherson's statement was ‘addressed to a matter of public
concern’ within the meaning of Connick because the public would obviously be
‘concerned’ about the assassination of the President. That is obviously
untenable: The public would be ‘concerned’ about a statement threatening to blow
up the local federal building or demanding a $1 million extortion payment, yet
that kind of ‘public concern’ does not entitle such a statement to any First
Amendment protection at all.”). Similarly, Wetherbe argues that his published
articles on the internet concerning his views on tenure somehow transform his
speech on tenure into a public concern. Following Justice Scalia’s logic,
Wetherbe’s speech on tenure does not become a public concern just because the
public may find Wetherbe’s speech “concerning” or because someone may quickly
search the internet and read his articles about tenure. Likewise, under the
majority’s reasoning, tenure is not a public concern.
ORDER ON MOTION TO DISMISS - Page 17
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public concern.
Finally, Wetherbe alleges that he has been retaliated against
in violation of the First Amendment for filing his original lawsuit
concerning his speech on tenure. Wetherbe alleges the filing of the
first lawsuit is protected under the Speech Clause and the Petition
Clause of the First Amendment. The framework, as applied to either
Clause, hinges on whether the speech or petition is a matter of public
concern.
See Borough of Duryea v. Guarnieri, 131 S.Ct. 2488, 2500
(2011). “If a public employee petitions as an employee on a matter
of purely private concern, the employee's First Amendment interest
must give way, as it does in speech cases.” Id. Conversely, when a
public employee petitions as a citizen on a matter of public concern,
the employee's First Amendment interest must be balanced against the
countervailing interest of the government in the effective and
efficient management of its internal affairs.” Id. (citing Pickering,
391 U.S. at 568).
To support his position that his original lawsuit involved a
matter of public concern, Wetherbe cites Oscar Renda Contracting,
Inc. v. City of Lubbock, Texas, 463 F.3d 378 (2006). However, Oscar
Renda is distinguishable from the present case. There, the City of
Lubbock argued that what “might be a matter of public concern in El
Paso . . . would be of little interest to the residents of the Lubbock
community.” Id. at 382. The district court agreed, concluding that
the contractor’s first lawsuit against the El Paso Water District
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for First Amendment retaliation was not a matter of public concern
“because the suit had nothing to do with a public issue in Lubbock
and thus did not address a matter of public concern to Lubbock—-‘the
relevant community.’” Id. at 382 (emphasis in original). The Fifth
Circuit disagreed, having “found no cases expressly discussing whether
the speech at issue must be a matter of public concern in the
community where the retaliation and plaintiff’s damages occur.” Id.
at 383. The Court noted “[i]f the petition alleged only that Renda
filed a lawsuit we would agree with the City ... [because] an
employee’s suit against her employer is not considered per se a matter
of public concern.” Id. at 383.
“If the lawsuit is only a matter
of personal interest to the employee, it is not considered a matter
of public concern.” Id.(citations omitted).
But, the contractor’s
suit against the El Paso Water District sought to “redress violations
of federally protected rights,” and this was enough “to put the City
on notice . . . that . . . [the] suit involved more than Renda’s
personal interests and implicated matters of public concern.” Id.
In Wetherbe’s original lawsuit, however, the Fifth Circuit held
that “Wetherbe was not speaking as a private citizen on a matter of
public concern . . . [and that] this prevents Wetherbe from having
a claim for First Amendment retaliation regarding this speech....”
Wetherbe, 593 F.App’x at 328. Therefore, because the original lawsuit
did not involve a matter of public concern, Wetherbe has failed to
state a claim for First Amendment retaliation in response to the
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filing of that lawsuit. See Borough, 131 S.Ct at 2500.
Consequently, because Wetherbe’s speech on tenure is not a matter
of public concern, he has failed to state a First Amendment
retaliation claim. As such, he cannot overcome the state’s Eleventh
Amendment sovereign immunity. Further, because Wetherbe has failed
to allege facts that “make out a violation of a constitutional right,”
he cannot overcome Nail’s qualified-immunity defense. Wetherbe, 593
F.App’x at 326 (quoting Pearson v. Callahan, 555 U.S. 223, 232
(2009)).
IV.
Conclusion
Based on the foregoing, the Defendants’ second motion to
dismiss (doc. 15) is GRANTED.
SIGNED March 31, 2016.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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