Banik v. Angel et al

Filing 98

OPINION & ORDER. (Signed by Judge Micaela Alvarez) Parties notified.(BelindaSaenz, 7)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
BIMAL K. BANIK,

§
§
§
§
§
§
§
§

Plaintiff,
VS.
ANGEL TAMEZ, et al,
Defendants.

September 21, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 7:16-CV-00462

OPINION & ORDER
The Court now considers Terence Thompson (―Thompson‖), Robert Nelsen (―Nelsen‖),
Havidán Rodríguez (―Rodríguez‖), Guy Bailey (―Bailey‖), Paul Foster, William Powell, R.
Steven Hicks, Ernest Aliseda, Alex Cranberg, Wallace Hall, Jr., Jeffery Hildebrand, Brenda
Pejovich and Robert Stillwell’s (collectively, ―University Defendants‖) partial motion to
dismiss,1 as well as Bimal Banik’s (―Plaintiff‖) response.2 After duly considering the record and
authorities, the court GRANTS the motion.
I.

BACKGROUND

University Defendants move to dismiss Plaintiff’s First Amendment retaliation claim
against them. Plaintiff’s claim rests upon three instances of alleged protected speech, and thus
the Court proceeds to first examine Plaintiff’s factual allegations to identify the statements
Plaintiff claims are protected speech.
A.

Statements to Ybarra

Plaintiff was a tenured chemistry professor at the University of Texas Pan-American
(―UTPA‖).3 One of his students—Amanda Ybarra (―Ybarra‖)—met with him to discuss ―her
1

Dkt. No. 80.
Dkt. No. 85.
3
Dkt. No. 79, ¶ 6.
2

1 / 10

grade in his class, and its impact on her ability to graduate . . . .‖4 Evidently, Plaintiff ―noted to
the student that she faced particular challenges to graduation because of her personal situation.‖5
Thereafter, Ybarra lodged a formal complaint with UTPA officials against Plaintiff for making
―a number of disparaging comments about [her] personal life . . . .‖6
B.

Statements to Angel Tamez

Plaintiff’s allegations concerning his statement(s) to student Angel Tamez (―Tamez‖) are
obtuse. Only by implication does Plaintiff appear to admit that he referenced an ―ad for Stilettos
Cabaret, a local gentleman’s club, that ran in the UTPA student newspaper with scantily clad
women . . . .‖7
C.

Statements concerning Hassan Ahmad

Plaintiff alleges that Hassan Ahmad (―Ahmad‖), one of his co-workers, wiretapped
Plaintiff’s office.8 Plaintiff further alleges that he ―made contact with the UTPA Police
Department‖9 and ―discussed this matter with UTPA officials . . . .‖10 Plaintiff also alleges that
―[o]n more than one occasion, after learning that [Plaintiff] complained of the crime committed
by Ahmad, [Plaintiff]’s job was threatened. Additionally, there were a number of attempts made
to coerce [Plaintiff] to drop the complaint made against Ahmad. Despite repeated attempts,
however, [Plaintiff] refused to do so.‖11 Plaintiff also alleges that he ―was pressured to sign an

4

Id. ¶ 36.
Id.
6
Id. ¶ 37; see id. n.4.
7
Id. ¶ 40 (―Tamez mentioned Banik’s reference to [the above referenced statement]‖).
8
Dkt. No. 79, ¶ 9.
9
Id.
10
Id. ¶ 34.
11
Id. ¶ 10.
5

2 / 10

affidavit of non-prosecution by UTPA officials . . . .‖12 Plaintiff characterizes his speech as that
―concerning criminal activity on a public university campus . . . .‖13
Plaintiff alleges that he was eventually terminated from UTPA and that his application to
the University of Texas Rio Grande Valley (―UTRGV‖) was rejected because of his
(aforementioned) speech.14 Plaintiff filed suit in state court, amending his petition ten times
before the case was removed to federal Court.15 Plaintiff amended his petition an eleventh time
in this Court,16 and through various dismissal motions and orders, this case was substantially
narrowed.17 University Defendants filed the instant motion on July 27, 2017,18 and Plaintiff
timely responded,19 rendering the motion ripe for review. The Court now turns to its analysis.
II.

LEGAL STANDARD

To survive a Rule 12(b)(6) motion, a plaintiff must plead ―enough facts to state a claim to
relief that is plausible on its face.‖20 This does not require detailed factual allegations, but it does
require ―more than labels and conclusions‖ or ―a formulaic recitation of the elements of a cause
of action.‖21 Courts first disregard from their analysis any conclusory allegations as not entitled
to the assumption of truth,22 and then undertake the ―context-specific‖ task of determining
whether the remaining well-pled allegations give rise to an entitlement of relief to an extent that
is plausible, rather than merely possible or conceivable.23 Courts regard all such well-pled facts

12

Id. ¶ 45.
Dkt. No. 79, ¶ 35.
14
Id. ¶¶ 39–73.
15
See Dkt. No. 1.
16
Dkt. No. 79.
17
See Dkt. Nos. 24, 56, & 74.
18
Dkt. No. 81.
19
Dkt. No. 85.
20
In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 554, 570 (2007)), cert. denied, 552 U.S. 1182 (2008) (internal quotations omitted).
21
Twombly, 550 U.S. at 555.
22
See id. at 678–79.
23
See id. at 679–80.
13

3 / 10

as true and view them in the light most favorable to the plaintiff.24 Notably, ―federal pleading
standards require a plaintiff to give specific instances of speech,‖ in the First Amendment
retaliation context.25
III.

DISCUSSION

Plaintiff’s Eleventh Amended Complaint, for the first time, makes clear that he is
alleging a First Amendment retaliation claim.26 In this public-employee context, Plaintiff must
establish, among other elements, that he spoke as a citizen on a matter of public concern.27 In
making this determination, the Court must consider the content, form, and context of a given
statement.28 In light of the very limited factual allegations, the Court first examines each of these
three considerations as to the Ybarra and Tamez ―speech.‖
A.

Statements to Ybarra

Plaintiff’s Eleventh Amended Complaint conspicuously omits the content of his speech
uttered to Ybarra. Plaintiff does allege that ―a student engaged [Plaintiff] in a conversation‖ but
does not provide the content of that conversation. Plaintiff later alleges that he ―noted to the
student that she faced particular challenges to graduation because of her personal situation.‖29
This is the total sum of the content of the speech that Plaintiff admits to in his complaint.
Plaintiff does provide the form—oral, and context—a student’s conversation with her professor
about her grades. Plaintiff, however, attempts to convert this speech into a matter of public
concern by labeling this section of his complaint ―University Attrition Rates‖30 and claiming that
―if [he] made any statements, they were comprised of speech concerning attrition rates and the
24

Id.
Rodríguez v. City of La Villa Tex., 2014 WL 1600306, at *3 (S.D. Tex. Apr. 21, 2014).
26
Dkt. No. 79, p. 9 (entitling the theory of recovery a ―First Amendment Retaliation Claim‖).
27
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
28
Wetherbe v. Texas Tech Univ. Sys., 2017 WL 2722287, at *2 (5th Cir. June 23, 2017).
29
Dkt. No. 79, ¶ 36.
30
Id. p. 10, § C(i)(b).
25

4 / 10

impact one’s personal situational challenges can have on successfully graduating a public
university.‖31 Yet, nowhere does Plaintiff provide the content of this alleged speech on attrition
rates beyond what the Court has already noted. Clearly, the content, form and context dictate that
Plaintiff was speaking as a UTPA professor to one of his students regarding her performance in
school. There is nothing about Ybarra’s personal grades, personal life, and personal chance of
graduation that is public in nature.
Defendants attempt to provide the content of Plaintiff’s speech by reference to Ybarra’s
University complaint against Plaintiff. Plaintiff himself provides the content of Ybarra’s
complaint in a footnote to Plaintiff’s Eleventh Amended Complaint.32 Nonetheless, Plaintiff
―vehemently denies that he made the statements alleged‖ by Ybarra.33 Additionally, Plaintiff
objects to the Court considering the statements attributed to him by Ybarra. 34 Nevertheless,
Plaintiff does not claim that any of the statements Ybarra attributed to him are protected by the
First Amendment. Thus, the Court relies on Plaintiff’s allegations in his complaint, scant though
they may be.
To the extent that Defendants considered the statements Ybarra contends Plaintiff made,
it is clear that such statements are not protected speech. Ybarra’s complaint alleges that Plaintiff
made the following statements to her:



[Plaintiff] asked if she ―regretted having a child;‖



31

she looked like she would ―have a lot of boyfriends;‖

she made ―a big mistake in having a child;‖

Id. ¶ 38.
Id. p. 4, n.4 (Plaintiff includes numerous footnotes in his complaints that are clearly beyond a short and plaint
statement. Counsel apparently is unwilling or unable to conform to the federal pleading standards so have now
resorted to the use of footnotes to include materials beyond what should be in the complaint).
33
Dkt. No. 79, ¶ 38, n.4.
34
Dkt. No. 85, ¶¶ 55–56.
32

5 / 10



it was going to be ―extremely hard for [her] to be here at school, and possibly
graduate;‖



if everyone found out she was a mother, they would ―think [she’s] corrupt;‖



if other girls knew about her situation, they would ―look down on [her] and feel
superior;‖



if other professors in the science department found out, they would ―probably not
like [her];‖



[Plaintiff] hoped she ―learned [her] lesson by having a child, instead of being like
all the other girls having sex with a lot of guys.‖35

These statements are all extremely personal in nature. They are specifically directed at Ybarra,
and have no place in the marketplace of ideas or public forum. They are not matters of public
concern. Thus, as to any of Ybarra’s statements, Plaintiff has failed to meet his burden to allege
facts that show he spoke on a matter of public concern. In sum, Plaintiff’s First Amendment
retaliation claim based upon statements made to Ybarra is insufficiently pled, and thus
DISMISSED WITH PREJUDICE.
B.

Statements to Tamez

As little as Plaintiff provides of the content, form and context of his speech with Ybarra,
Plaintiff provides even less as to Tamez. Plaintiff admits only that Tamez recorded Plaintiff and
others and Tamez later provided a written statement wherein Tamez claimed Plaintiff made
disparaging remarks about a student.36 Plaintiff appears to concede making a reference to
―Stilettos Cabaret, a local gentleman’s club‖37 but does not actually state so in his Eleventh
Amended Complaint. In fact, Plaintiff does not even admit to having a conversation with Tamez;
rather, he states Tamez recorded Plaintiff’s conversation with others. Since Plaintiff does not
admit any conversation with Tamez, he does not provide the form or context of any such alleged
35

Id. n.4.
Id. ¶¶ 34–40.
37
Id. ¶ 40 (―Tamez mentioned Banik’s reference to ad for Stilleto’s Cabaret‖).
36

6 / 10

speech. Plaintiff claims only that his ―speech concerning pornographic advertising by a public
university is a matter of public concern.‖38
Without more, it is impossible to reasonably infer Plaintiff was speaking as a citizen,
rather than as a UTPA faculty member, especially since Plaintiff was a UTPA professor and
Tamez was one of his students.39 Moreover, it is not possible to reasonably infer that his
statements were on a matter of public concern because Plaintiff provides no context in which to
understand his reference to pornographic advertising.40 In sum, Plaintiff’s First Amendment
retaliation claim based upon his statements to Tamez is DISMISSED WITH PREJUDICE.
C.

Statements concerning Ahmad

As to Ahmad, Plaintiff at least provides more content, form and context. Plaintiff asserts
that following his discovery of a recording device in his office, he made a complaint to the
UTPA police. Thereafter, Ahmad, who apparently planted the recording device, was then
prosecuted. Plaintiff, however, was pressured to sign a non-prosecution affidavit. Nonetheless,
on June 6, 2013, Ahmad pled guilty.
Thus, the Court can determine that Plaintiff’s speech consists of 1) his complaint to the
UTPA Police Department and 2) his refusal to sign the non-prosecution affidavit.41 As to the first
instance, the Court finds a complaint to UTPA police about criminal activity on campus to be
speech as a citizen on a matter of public concern. As to the second instance, the question is
closer—the Dean and Assistant Dean were pressuring a professor to withdraw a criminal
complaint against another professor. Certainly, this appears to be non-speech as an employee on
a personnel matter at the university.
38

Id. ¶ 42,
See id. n.11. (Tamez’s written complaint clarifies that he was one of Plaintiff’s students).
40
Connick v. Myers, 461 U.S. 138, 147 (1983) (―Whether an employee's speech addresses a matter of public concern
must be determined by the content, form, and context of a given statement.‖).
41
See Caleb v. Grier, 598 Fed. Appx. 227, 237 (5th Cir. 2015) (―That Appellants have alleged retaliation based on
their refusal to speak does not affect the analysis.), cert. denied, 135 S. Ct. 2813 (2015).
39

7 / 10

However, even if both instances constitute protected speech, Plaintiff fails to establish the
fifth element of a First Amendment retaliation claim—that the employee’s speech was a
substantial or motivating factor behind the defendant’s actions.42 Plaintiff’s conclusory
allegations are properly ignored.43 The Fifth Circuit has clarified that a First Amendment
retaliation claim can only be maintained against final decision-makers.44 Here, Plaintiff only
alleges that Bailey and Rodríguez were final decision-makers with regard to the decision not to
hire Plaintiff at UTRGV.45 Thus, Plaintiff’s First Amendment claim must be DISMISSED
WITH PREJUDICE insofar as it is alleged against any other Defendants on the basis of denial
of UTRGV employment.
Similarly, Plaintiff only alleges that members of the University of the Texas System
Board of Regents (―Board of Regents‖) were the final decision-makers with regard to the
decision to terminate Plaintiff from UTPA.46 Thus, Plaintiff’s First Amendment claim against
Thompson, Nelsen, Rodríguez, and Bailey (who are not members of the Board of Regents) must
be DISMISSED WITH PREJUDICE insofar as it is grounded in Plaintiff’s termination from
UTPA.
With regard to Plaintiff’s termination from UTPA, Plaintiff only alleges that the Board of
Regents—the final decision makers—―were aware that [Plaintiff] had spoken on matters of
42

Hardesty v. Cochran, 621 Fed. Appx. 771, 775 (5th Cir. 2015); see also James v. Tex. Collin Cty., 535 F.3d 365,
375–76 (5th Cir. 2008) (noting that the speech must have been ―a substantial or motivating factor behind the
defendant’s actions.‖); Ortego v. Standige, 578 Fed. Appx. 414, 418 (5th Cir. 2014) (same).
43
See Carson v. Kelly, 2011 WL 3331801, at *3 (N.D. Tex. June 24, 2011) (allegations going to state of mind must
be factually supported, and not conclusory), report and recommendation adopted, 2011 WL 3348102 (N.D. Tex.
July 29, 2011); Wade v. Travis Middle Sch., 2011 WL 3880481, at *4 (N.D. Tex. Aug. 9, 2011), report and
recommendation adopted, 2011 WL 3897855 (N.D. Tex. Sept. 1, 2011) (same); Ashcroft v. Iqbal, 556 U.S. 662, 683
(2009) (―[R]espondent’s complaint does not contain any factual allegation sufficient to plausibly suggest petitioners’
discriminatory state of mind. His pleadings thus do not meet the standard necessary to comply with Rule 8.‖).
44
Juarez v. Aguilar, 666 F.3d 325, 334 (5th Cir. 2011) (citing Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir.
2004) (―As to causation, only final decision-makers may be held liable for First Amendment retaliation employment
discrimination under § 1983.‖)).
45
Dkt. No. 79, ¶ 67 (―Bailey and Rodríguez made the decision to not hire [Plaintiff] at UTRGV.‖).
46
Id. ¶ 48 (―[The members of UT System Board of Regents . . . voted to terminate [Plaintiff’s] faculty appointment
from UTPA.‖).

8 / 10

public concern relating to Ahmad’s criminal activity . . . .‖47 Plaintiff does, however, allege that
it was initially Thompson who recommended termination.48 According to Plaintiff, Thompson
was involved in the drafting of Tamez’ statement, related to Ybarra’s complaint.49 While
Thompson’s recommendation was made to Dean Trant, there are absolutely no facts that
Thompson’s recommendation was based, in whole or in part, on any ―Ahmad‖ speech. In fact,
there are no factual allegations that Thompson was involved in the Ahmad matter. It is also clear
that Dean Trant ―based on Thompson’s recommendation‖50 in turn recommended termination to
Rodriguez, who recommended termination to Nelsen, who instituted Tribunal proceedings. The
Tribunal then recommended termination to Nelsen who recommended termination to the Board
of Regents. The Court cannot reasonably infer from the Board of Regents’ awareness of
Plaintiff’s ―Ahmad‖ speech that it was a substantial or motivating factor animating Plaintiff’s
termination.
Similarly, with regard to Rodríguez and Bailey’s denial of Plaintiff’s application to
UTRGV, Plaintiff only alleges that they ―both had access to [Plaintiff’s] UTPA personnel
records which contained the protected speech.‖51 Again, the Court cannot reasonably infer from
Rodríguez and Bailey’s mere access to Plaintiff’s statements concerning Ahmad that they were a
substantial or motivating factor animating the rejection of Plaintiff’s UTRGV application. For
these reasons, Plaintiff’s First Amendment claim based upon Plaintiff’s statements concerning
Ahmad is DISMISSED WITH PREJUDICE.

47

Id. ¶ 52 (emphasis added).
Id. ¶ 43.
49
Id. ¶ 40.
50
Dkt. No. 79, ¶ 43.
51
Id. ¶ 71 (emphasis added). Plaintiff also alleges that he ―specifically referenced the protected speech contained in
the false complaint filed by the UTPA student,‖ but this particular speech is not the speech at issue—that concerning
Ahmad.
48

9 / 10

IV.

HOLDING

For the foregoing reasons, University Defendants’ motion to dismiss is GRANTED, and
Plaintiff’s First Amendment retaliation claims against them are DISMISSED WITH
PREJUDICE.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 21st day of September, 2017.
___________________________________
Micaela Alvarez
United States District Judge

10 / 10