John Oller v. Nancye Roussel , 609 F. App'x 770 ( 2015 )

Case: 14-31101 Document: 00512995605 Page: 1 Date Filed: 04/07/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-31101 April 7, 2015
Summary Calendar
Lyle W. Cayce
Clerk
JOHN W. OLLER,
Plaintiff - Appellant
v.
NANCYE C. ROUSSEL, individually and in her official capacity as Head of
the Department of Communicative Disorders, University of Louisiana at
Lafayette; A. DAVID BARRY, individually and in his official capacity as
Dean of the College of Liberal Arts, University of Louisiana at Lafayette;
MARTIN J. BALL, individually and in his official capacity as Professor of
Communicative Disorders, University of Louisiana at Lafayette,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:11-CV-2207
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM:*
Professor John W. Oller appeals the summary judgment in favor of
Defendants Nancye C. Roussel, A. David Barry, and Martin J. Ball
(collectively, “Defendants”). Oller sued Defendants for violating his First
Amendment rights by censoring his speech and retaliating against him. We
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-31101 Document: 00512995605 Page: 2 Date Filed: 04/07/2015
No. 14-31101
AFFIRM the district court’s judgment.
I.
In 1997, Oller joined the University of Louisiana at Lafayette (“UL”) as
a professor in the Communication Disorders (“CODI”) department. For many
years, Oller has been vocal about his views regarding creationism, intelligent
design, and the relationship between vaccines and autism. Oller has written
several books about the alleged link between autism and vaccines and
discussed his views during his classes. Oller claims that Defendants became
hostile to his work and engaged in several actions meant to remove him from
the department and prevent him from spreading his views to students.
In December 2011, Oller sued Defendants for violating his First
Amendment rights and his employment contract. He subsequently amended
his complaint to add state law defamation claims. Both parties moved for
summary judgment. The district court granted summary judgment in favor of
Defendants with respect to Oller’s First Amendment claims and declined to
exercise supplemental jurisdiction over Oller’s remaining state claims,
dismissing them without prejudice. Oller timely appealed.
II.
We review a grant of summary judgment de novo. Mesa v. Prejean, 543
F.3d 264, 269 (5th Cir. 2008). Summary judgment is appropriate when “there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). We may affirm the district
court’s grant of summary judgment on any ground supported by the record and
presented to the district court. Hernandez v. Velasquez, 522 F.3d 556, 560 (5th
Cir. 2008).
To survive summary judgment on his First Amendment retaliation
claim, Oller must present evidence showing, inter alia, that he suffered an
adverse employment action. Burnside v. Kaelin, 773 F.3d 624, 626 (5th Cir.
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2014). “‘Adverse employment actions are discharges, demotions, refusals to
hire, refusals to promote, and reprimands.’” Breaux v. City of Garland, 205
F.3d 150, 157 (5th Cir. 2000) (quoting Pierce v. Tex. Dep’t of Criminal Justice,
37 F.3d 1146, 1149 (5th Cir. 1994)). Though some other actions, such as
transfers, may be adverse employment actions when they are “sufficiently
punitive,” “‘some things are not actionable even though they have the effect of
chilling the exercise of free speech.’” Breaux, 205 F.3d at 157 (quoting
Benningfield v. City of Hous., 157 F.3d 369, 376 (5th Cir. 1998)).
We have been particularly reluctant to interfere with decisionmaking in
the academic context. Many of the decisions made at schools and
universities—such as decisions “concerning teaching assignments, pay
increases, administrative matters, and departmental procedures”—are not the
kinds of adverse actions that “rise to the level of a constitutional deprivation”
under our jurisprudence. Dorsett v. Bd. of Trs. for State Colls. & Univs., 940
F.2d 121, 123 (5th Cir. 1991). “Of all fields that the federal courts should
hesitate to invade and take over, education and faculty appointments at the
university level are probably the least suited for federal court supervision.” Id.
at 124 (citation, quotation marks, and alterations omitted).
Oller makes five allegations to support his claim: (1) Defendants refused
to allow Oller to use his textbook as primary source material in classes he
teaches; (2) Defendants did not assign him to teach classes in the CODI
department; (3) Defendants gave the Hawthorne Professorship, an endowment
available to professors at UL, to another professor; (4) Defendants reclassified
Oller from a Track IV professor to a Track III professor; and (5) Defendants
have not awarded him a merit pay raise since 2004.
We conclude that the first four alleged actions are not adverse
employment actions. As to the last, Oller failed to raise a material issue of fact
supported by competent summary judgment evidence.
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First, declining to use Oller’s textbook as primary material in a class is
not an adverse employment action. Oller requested that a textbook he
authored replace the current primary text for his section of a course taught in
multiple sections. The curriculum committee denied his request, noting that
courses offered with multiple sections should use the same course text. The
selection of a single textbook for a class with multiple sections taught by
different professors is a departmental procedure and not a “constitutional
deprivation.” See Dorsett, 940 F.2d at 123; see also Kirkland v. Northside Ind.
Sch. Dist., 890 F.2d 794, 802 (5th Cir. 1989) (“We hold only that public school
teachers are not free, under the first amendment, to arrogate control of
curricula.”). Additionally, the department allowed Oller to use his textbook as
secondary material and to discuss his views during class. Thus, not only did
the refusal to use Oller’s textbook as primary material not rise to the level of a
constitutional deprivation, but also it did not have the effect of chilling his
speech. See Dorsett, 940 F.2d at 123; Pierce, 37 F.3d at 1150.
Second, the failure to assign Oller to teach particular CODI classes is
also not an adverse employment action. In Dorsett, we noted that “decisions
concerning teaching assignments,” though significant to the faculty member,
“do not rise to the level of a constitutional deprivation.” 940 F.2d at 123. “[A]
federal court is simply not the appropriate forum . . . to seek redress for such
harms.” Id. That Oller might find his teaching assignments undesirable or
might prefer other assignments is not material to this determination.
Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 555 (5th Cir. 1997)
(“Undesirable work assignments are not adverse employment actions.”). Oller
has not presented evidence that shows that his assignment to teach lower-level
or nondepartmental classes fundamentally changed the nature of his job with
UL, nor has he presented evidence that Defendants prohibited him from
speaking on certain topics during his assigned classes. Cf. Thompson v. City
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of Waco, 764 F.3d 500, 505 (5th Cir. 2014) (in a Title VII case, holding that a
detective suffered an adverse employment action where a police department
“rewrote and restricted his job description to such an extent that he no longer
occupie[d] the position of a detective”). Accordingly, Oller fails to raise a
factual dispute as to whether his teaching assignment constitutes an adverse
employment action.
Third, UL’s decision not to renew Oller’s Hawthorne Professorship also
does not support his retaliation claim. UL has four Hawthorne Professorships.
Each confers an endowment to a professor for a three-year period. At the end
of three years, the current holder of the Professorship must reapply for it, and
other candidates may compete. Oller held one of the Professorships from 2004
to 2013. When Oller reapplied for the Professorship in 2013, the department
awarded the professorship to Defendant Ball. 1 Though Oller frames the loss
of the Professorship as a loss of compensation, the evidence does not support
Oller’s contention that he was entitled to the Professorship. He did not first
receive the Professorship until several years after he began teaching at UL,
and he had to reapply for it every three years. Cf. Markwell v. Culwell, 515
F.2d 1258, 1259 (5th Cir. 1975) (“The appellant’s ‘property’ interest in his job
was limited by the year-to-year contract and his probationary status.”).
Rather, the Professorship appears to be a discretionary, merit-based award
based in part on UL officials’ assessment of the quality of a professor’s work
and his value to the department. Courts are not the appropriate forum for
evaluating education and faculty appointments. Dorsett, 940 F.2d at 124.
Accordingly, we find that the decision not to renew Oller’s Hawthorne
Professorship is not an adverse employment action.
1 Defendants dispute that they were involved in the selection process. As we conclude
that the decision not to renew the professorship is not an adverse employment action, this
factual dispute is not material.
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Turning to the fourth alleged action, Oller fails to present evidence
supporting his claim that his reclassification from Track IV to Track III is an
adverse employment action. A transfer to a less desirable position can
sometimes constitute a demotion—and therefore an adverse employment
action—even without a decrease in pay. See Click v. Copeland, 970 F.2d 106,
110 (5th Cir. 1992). However, Oller does not bring forth evidence showing how
the “Track” designation affects his pay, benefits, or other privileges of
employment. In fact, Oller remained a tenured professor at UL after the
reclassification.
Finally, Oller failed to raise a material fact issue regarding his complaint
that Defendants gave him lower merit evaluations for many years resulting in
the denial of merit pay raises. Defendants have presented evidence that no one
at UL has received a merit pay raise since 2008, a claim Oller has not rebutted.
Thus, this assertion does not support a reversal of the summary judgment.
To the extent Oller’s First Amendment claims arise from a “prior
restraint” on his speech, we find that he fails to show evidence that Defendants
have prohibited him from stating his beliefs or censored his speech. To the
contrary, the summary judgment evidence shows that Defendants have
allowed Oller to use his textbook as secondary material, discuss his views
during class, and publish and speak about his views outside the classroom.
AFFIRMED.
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