Miller v. Bunce

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 7, 2000
• Docket: 99-41155
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-41155 Summary Calendar

TODD MILLER,

Plaintiff-Appellant,

v.

HARVEY BUNCE, III , et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas Civil Action No. 6:98-CV-382 June 7, 2000

Before SMITH, BARKSDALE and PARKER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant, Todd Miller (“Miller”), sued eight

University of Texas Medical Branch faculty members for alleged

constitutional violations pursuant to 42 U.S.C. § 1983 (1994) and

for alleged violations of the anti-retaliation provision of the

False Claims Act, 31 U.S.C. § 3730(h) (1994). The district court

granted defendants' motion for summary judgment as to all claims.

Miller appeals this ruling only with respect to his First

Amendment retaliation claim. Because we agree with the district

court that Miller failed to allege an adverse employment action,

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. we affirm.

FACTUAL HISTORY AND PROCEEDINGS BELOW

Miller joined the Department of Preventative Medicine and

Community Health (“PMCH”) at the University of Texas Medical

Branch in Galveston (“UTMB”) as a faculty member in 1991. He

holds a tenure track position with a nine year period in which to

apply for and receive tenure. In June of 1995, Miller received a

National Institutes of Health (“NIH”) research grant. The terms

of the grant stated that part of the money was to be used to fund

ten percent of the salaries of defendants Grady and Freeman.1

Around the time that the grant became effective, Miller

complained that he experienced problems working with Grady and

Freeman.2 Miller alleged that they failed to perform work

required on the grant, yet they accepted salary support for such

work. Miller wrote a letter to Freeman asking him to investigate

the work that he and Grady performed. Upset by the letter, both

Freeman and Grady complained to Miller's supervisor, defendant

Markides.

On January 5, 1996, Miller, Grady, Freeman and Markides met

unsuccessfully to discuss the problems that had arisen from the

grant. Subsequent to this meeting, Freeman apparently resigned

1 Grady and Freeman are professors and biostatisticians in PMCH who assisted Miller in the grant application process. 2 Although the original complaint named eight defendants, on appeal, Miller is only pursuing his claims against defendants Harvey Bunce, III, Billy Phillips and Kyrakos Markides.

-2- from the grant. Miller complained to defendant Bunce, PMCH

Department Chair, about Freeman's receipt of salary support for

work that he performed inadequately or not at all. Although

Bunce concluded that Freeman adequately performed the required

work, Miller alleged that Bunce did not give satisfactory

evidence to support this conclusion. When the grant came up for

renewal in May of 1996, Miller refused to sign the form because

it required him to verify Freeman's time commitment. Miller

informed NIH's Office of Management Assessment of this problem,

but they expressed no interest in pursuing the matter and

encouraged him, as did Bunce, to sign the renewal form.

Grady remained on the grant for some time after Freeman's

resignation. Miller alleged that Grady did not perform tasks

satisfactorily. At one point, Miller suggested that Grady

correct and update some of the work he (Grady) had done. Grady

allegedly resigned out of aggravation. Eventually, another

statistician was assigned to Miller's project at no charge.

Miller complained that this replacement was unqualified to do the

job. The replacement was removed from the grant without another

replacement, leaving Miller without the statistical support

necessary to complete the grant project.

In January of 1997, defendant Meyer, Associate Vice

President for Academic Affairs, informed Miller that he intended

to take no further action in response to Miller's reports of

misuse of grant funds. Miller then filed a second complaint with

-3- NIH. We find no evidence in the record of an NIH response to

this second complaint.

During and following the above-stated occurrences, Miller

alleged that he experienced difficulty working with several of

his other colleagues, including defendant Markides. Miller also

complained that Markides and Bunce failed to adequately support

him in his attempts to seek committee appointments and tenure.

Despite these “problems,” Miller was promoted to assistant

professor in September of 1997.

At a point prior to Miller's submission of his tenure

application, defendant Phillips, Director of the Division of

Epidemiology and Biostatistics at PMCH, allegedly suggested to

the department faculty that the rules of the Appointments,

Promotion and Tenure Committee (“APT Committee”) be changed. In

June 1997, after nearly two years of review and while Miller's

tenure application was pending, the APT Committee procedures were

revised. Miller alleged that the changes were specifically

intended to handicap his chances for obtaining tenure. Miller

also complained that the defendants' actions compromised his

tenure evaluation for a variety of reasons including the fact

that he was “forced” to file an incomplete final report with NIH.

Miller argued that the defendants' retaliated against him

for his investigation and reporting of what he termed “grant

fraud” pertaining to the alleged inadequate work performed on the

NIH grant. In addition to a host of claims not presented for

-4- review here, Miller claimed that he was retaliated against for

exercising his rights under the First Amendment. The district

court granted summary judgment for the defendants on this issue

because Miller failed to allege an adverse employment action took

place. We agree with the district court's analysis and affirm

its decision.

STANDARD OF REVIEW

We review a grant of summary judgment de novo, applying the

same standard as the district court. The moving party is

entitled to judgment as a matter of law when the record indicates

no genuine issue as to any material fact. See FED. R. CIV. P. 56;

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Byers v. The

Dallas Morning News, 209 F.3d 419, 423 (5th Cir. 2000). If the

burden at trial rests on the non-movant, the movant must merely

demonstrate an absence of evidentiary support in the record for

the non-movant's case. See Celotex Corp., 477 U.S. at 322. We

will consider the evidence in the light most favorable to the

non-movant, yet the non-movant may not rely on mere conclusory

allegations in the pleadings; rather, the non-movant must respond

to the motion for summary judgment by setting forth particular

facts indicating that there is a genuine issue of material fact

for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248-49 (1986). After the non-movant has been given the

opportunity to raise a genuine factual issue, if no reasonable

-5- juror could find for the non-movant, summary judgment will be

granted. See Celotex Corp., 477 U.S. at 322; see also FED. R.

CIV. P. 56(c).

FIRST AMENDMENT RETALIATION CLAIM

To establish a prima facie case of retaliation for the

exercise of free speech, a plaintiff must show that (1) his

speech was protected; (2) he suffered an adverse employment

action; and (3) there was a causal connection between the

protected speech and the adverse employment action. See

Benningfield v. City of Houston, 157 F.3d 369, 375 (5th Cir.

1998); Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997)

(citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 287 (1977)). We will assume without deciding, as did

the district court, that Miller's allegations that his colleagues

were not performing adequate work on the grant constitutes

protected speech. Our analysis of this case turns on whether

Miller has alleged an adverse employment action.

“Adverse employment actions are discharges, demotions,

refusals to hire, refusals to promote, and reprimands.” Pierce

v. Texas Dep't of Criminal Justice, Inst. Div., 37 F.3d 1146,

1149 (5th Cir. 1994). “Many actions which merely have a chilling

effect upon protected speech are not actionable.” Harrington,

118 F.3d at 365. In order to establish a constitutional injury,

a plaintiff claiming retaliation for exercise of his first

-6- amendment rights must allege more than mere trivial actions.

See, e.g., Pierce, 37 F.3d at 1149 n.1 (“[W]e apply the main

analysis of Rutan to retaliation claims and require more than a

trivial act to establish constitutional harm.”) (discussing Rutan

v. Republican Party, 497 U.S. 62, 76 n.8 (1990)).

Miller argues that the district court was in error in

failing to find that the “defendants' interference with and

refusal to timely consider” his tenure application did not

constitute an adverse employment action.3 The “one hundred and

fifty trivial acts of retaliation” Miller proffered as evidence

was described by the district court as “an attempt to persuade

the Court that the whole is greater by vast proportions than the

sum of its parts.” We agree with the district court that the

alleged harms suffered by Miller do not rise to the level of

constitutional deprivation. We are counseled, in part, by this

court's statement regarding federal courts' involvement in the

3 This initial statement of the issue is parsed into three arguments for reversal and a finding that the actions of the defendants constituted adverse employment actions: (1) that the retaliatory refusal to submit and consider Miller's tenure application was a de facto denial of tenure; (2) that the retaliatory delay of Miller's tenure application precluded him from curing any deficiencies in his application prior to the expiration of his non-tenured probationary term; and (3) that defendants' retaliatory conduct in precluding Miller's tenure- related activities “tended to affect” his employment status and created an illegal barrier to an employment opportunity. None of these versions of the issue presented for review changes the basis of our decision. Therefore, we shall use the phraseology Miller used in the “Statement of the Issue Presented for Review” section of his initial brief.

-7- management of public educational institutions.

In public schools and universities across this nation, interfaculty disputes arise daily over teaching assignments, room assignments, administrative duties, classroom equipment, teacher recognition, and a host of other relatively trivial matters. A federal court is simply not the appropriate forum in which to seek redress for such harms.

We have neither the competency nor the resources to undertake to micromanage the administration of thousands of state educational institutions. 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.

Dorsett v. Board of Trustees for State Colleges and Universities,

940 F.2d 121, 123-24 (5th Cir. 1991) (emphasis added) (citations

omitted). We do not accept Miller's invitation to ignore the

established policy and precedent of this circuit and to begin a

policy of micromanagement of university administrative decision

making.

CONCLUSION

For the aforementioned reasons, we AFFIRM the district

court's decision granting summary judgment to the defendants

regarding Miller's First Amendment retaliation claim.

AFFIRMED

-8-