Salinas v. University of Texas-Pan American

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opinion should not be published and is not precedent except under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.
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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).
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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
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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.
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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
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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
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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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