Kostic v. Tex. A&M Univ. At Commerce

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Defendants' motion granted in part and denied in part.

Brian P. Sanford, David Bryan Norris, Sanford Bethune, Richardson, TX, for Plaintiff. James Carlton Todd, Office of the Texas Attorney General, Austin, TX, for Defendants.

After making an independent review of the pleadings, files and records in this case, and the Findings, Conclusions, and Recommendation of the United States Magistrate Judge dated January 17, 2014, the Court finds that the Findings and Recommendation of the Magistrate Judge are correct and they are accepted as the Findings, Conclusions, and Recommendation of the Court.

IT IS, THEREFORE, ORDERED that the Findings, Conclusions, and Recommendation of the United States Magistrate Judge are accepted.

This case has been referred to the United States magistrate judge for recommendation on Defendants' Second (Renewed) Motion for Summary Judgment [Dkt. No. 108] and Defendants' Motion to Strike New Allegations and Evidence in Plaintiff's Response to the Renewed Motion for Summary Judgment [Dkt. No. 129] pursuant to 28 U.S.C. § 636(b) and orders of reference. See Dkt. Nos. 109 & 130. The undersigned issues the following findings of fact, conclusions of law, and recommendation.

Defendants assert that Plaintiff cannot show a causal connection between his protected speech and any adverse action. See Mooney v. Lafayette Cnty. Sch. Dist., 538 Fed.Appx. 447, 452–54 (5th Cir.2013). Once a plaintiff has met his burden of showing that his protected speech was a motivating factor in the defendant's adverse employment decision, a defendant may still avoid liability by showing, by a preponderance of the evidence, that it would have taken the same adverse employment action even in the absence of the protected speech. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Mooney, 538 Fed.Appx. at 454–55; Haverda, 723 F.3d at 591–92; Charles, 522 F.3d at 516 n. 28. That is, even if Plaintiff could show that his protected speech was a motivating factor in his termination, the Individual Defendants may still avoid liability by showing they would have taken the same action of terminating him even in the absence of the protected speech. See Haverda, 723 F.3d at 595. An employee can, however, refute that showing by presenting evidence that “ ‘his employer's ostensible explanation for the discharge is merely pretextual.’ ” Id. at 592 (quoting Coughlin, at 1157). Thus, Plaintiff may refute that showing by presenting evidence that his employer's explanation for the adverse employment action is merely pretextual. See id. at 595.

But the undersigned notes that “[s]ummary judgment should be used most sparingly in ... First Amendment cases ... involving delicate constitutional rights, complex fact situations, disputed testimony, and questionable credibilities.” Id. at 592 (internal quotation marks omitted). And, more specifically, the Fifth “Circuit has held that summary disposition of the causation issue in First Amendment retaliation claims is generally inappropriate.” Id. at 595. “Courts applying the Mt. Healthy doctrine in summary disposition analyses have held that if a plaintiff brings forth evidence of pretext, the determination whether the employer's stated reasons are pretextual is a fact issue reserved for the jury.” Id. at 595–96. “Courts deciding the causation issue by summary disposition have generally done so only when the employer's reasons have not been controverted.” Id. at 596.

The undersigned finds that Plaintiff has met his burden, on summary judgment, to make a prima facie showing that his protected speech was a motivating factor in his termination. Plaintiff was removed from his position as Head of the Chemistry Department after Defendant Jang spearheaded a complaint from the department faculty. Plaintiff then raised concerns about Jang's religious proselytization and discrimination in the Chemistry Department, which was protected speech. Thereafter, there were several student complaints, including the 400–student petition that was submitted shortly after Plaintiff's statements about safety issues concerning the Chemistry Department fire and his allegations of a cover-up, which were also protected speech. Plaintiff's evidence weaves a web of influence from Jang to Lemanski to Jones to McKinney, with each playing a role, either directly or indirectly, in his termination, and traces the motivation for his termination, at least in part, back to his protected speech. And the Individual Defendants have made little effort to demonstrate the absence of a genuine issue of material fact as to whether the Individual Defendants were aware of Plaintiff s protected speech. See Dkt. No. 108 at 9; Dkt. No. 132 at 8 n. 6, 9; compare Dkt. No. 62 at 23 (stating that Plaintiff “cannot show that the relevant decision-makers were aware of all of his putative protected speech, especially his alleged criticism of the January 2009 ceremony and the April 2009 Good Friday closing”).

Defendant Jang is the Head of the Chemistry Department and a Professor of Chemistry. Jang was the only other tenured professor in the Chemistry Department when Plaintiff came to TAMUC as head of the department in June 2006. Jang took the lead in preparing an April 11, 2007 memo from the Chemistry Department faculty and staff presenting grievances against Plaintiff. The grievances accused Plaintiff of “extremely condescending and demeaning” treatment of faculty, staff, and students. Within days, Plaintiff was asked by the dean to resign as department head, which he did, and Plaintiff was replaced by Jang. Plaintiff then assisted Shi to prepare a January 9, 2009 complaint against Jang and also filed one himself. In the complaint, Plaintiff alleged Jang pressured Shi and his wife to participate in religious activities and accused Jang of religious preference and discrimination in the Chemistry Department, all of which was protected speech. Plaintiff also raised safety concerns about the Chemistry Department laboratory assigned to Jang's protégé, Ni, and went public with those concerns after the fire in the laboratory, as well as accusing TAMUC in the media of a cover-up following the fire. The 400–page student petition calling for Plaintiff's ouster was prepared and submitted shortly after the Plaintiff's protected speech concerning safety issues and the fire, and it was one of the reasons given for Plaintiff's termination. The undersigned concludes that Plaintiff has raised at least a genuine dispute of material fact concerning whether any adverse employment actions attributable to Jang were substantially motivated by Plaintiff's protected speech.

Defendant Jones is the President and Chief Executive Officer of TAMUC. Lemanski informed Jones of the Fullwood committee's findings and recommendation. On June 17, 2010, Jones sent Plaintiff a notice of dismissal, which based termination on grounds that paralleled those found by the Fullwood committee. One of those grounds was the 400–student petition, which Jones allegedly knew was unreliable. Defendant Jones ordered TAMUC faculty not to talk to the media after the fire, and the 400–page petition was prepared shortly after Plaintiff's protected speech concerning the fire. Some of Plaintiff's protected speech concerning the alleged establishment of religion at TAMUC were aimed at TAMUC's highest officials, including Jones. Plaintiff appealed the notice of dismissal, and the appeal was referred to a standing committee headed by Dr. Chris Myers, which voted twelve to three to recommend Plaintiff's termination. A week after receiving the Myers committee report, Jones forwarded the report, the hearing transcript, a copy of his June 17 dismissal letter, and his recommendation that Plaintiff be terminated to Chancellor McKinney. The undersigned concludes that Plaintiff has raised at least a genuine dispute of material fact concerning whether any adverse employment actions by Jones were substantially motivated by Plaintiff's protected speech.

Defendant McKinney is the former Chancellor of TAMUC and was the final decision maker. McKinney read the Myers committee report, hearing transcript, and Jones' recommendation. Plaintiff was terminated by McKinney on December 8, 2010. The undersigned concludes that Plaintiff has raised at least a genuine dispute of material fact concerning whether any adverse employment actions by McKinney, for which he relied on Jones's recommendation, were substantially motivated by Plaintiff's protected speech.

The Individual Defendants argue that, even if Plaintiff made out a prima facie case, they would have taken the same adverse employment actions in the absence of Plaintiffs protected speech. President Jones clearly articulated legitimate, non-retaliatory reasons for Plaintiff's termination and its timing. Plaintiff attacks some of those reasons but not others. But Defendants maintain that McKinney believed that Plaintiff's termination was justified because not only had Plaintiff violated several laws but also he was, at best, the catalyst to increasing strife in the Chemistry Department and the subject of numerous reports of misconduct from multiple sources at TAMUC—including Plaintiff's subordinates, equals, supervisors, and students—some of which resulted in investigations. See LeMaire v. La. Dep't of Transp. & Dev., 480 F.3d 383, 391 (5th Cir.2007); see also Jackson v. Cal–Western Packaging Corp., 602 F.3d 374, 379 (5th Cir.2010) (“In cases in which an employer discharges an employee based on the complaint of another employee, the issue is not the truth or falsity of the allegation, but whether the employer reasonably believed the employee's allegation and acted on it in good faith.” (internal quotation marks omitted)).

In the notice of termination, President Jones informed Plaintiff that the grounds for termination were based on professional incompetence, moral turpitude adversely affecting the performance of duties or the meeting of responsibilities to TAMUC or its students or associates, and violation of TAMUC policies, system regulations, rules, or laws substantially related to performance of faculty duties. See Dkt. No. 63–4 at 1206–07. President Jones also listed twelve specific violations supporting those grounds. See id. Those violations included sending a letter to a pregnant student's physician requesting medical information, denying a student's request to drop a class and harassing her about her medical condition, publicly humiliating two students in front of their peers, humiliating four TAMUC employees or potential employees, purchasing chemicals with Higher Education Funds and shipping them to another university that had no current working relationship with TAMUC, and sexual harassment of two female students. See id. The notice of termination also addressed complaints in the “[p]etition received from over 400 students stating that you have ‘fostered an atmosphere of hostility, discrimination, unfair grading practices, and sexual harassment.’ ” Id. Although Judge Lynn has noted that “[t]he notice of termination he sent to Plaintiff referred to a number of prior events Plaintiff claimed to be retaliatory,” Dkt. No. 105 at 1, none of the allegedly protected speech was mentioned.

But Plaintiff may refute Defendants' showing of legitimate, non-retaliatory reasons by presenting evidence that his employer's explanation for the adverse employment action is merely pretextual. See Haverda, 723 F.3d at 595. And the undersigned is mindful of the Fifth Circuit's guidance that “summary disposition of the causation issue in First Amendment retaliation claims is generally inappropriate.” Id. Still, Plaintiff “must show that a material issue of fact exists as to whether [Defendants'] explanation is pretextual.” Aryain v. Wal–Mart Stores Tex., LP, 534 F.3d 473, 486–87 (5th Cir.2008).

Defendants assert that Plaintiff “has utterly failed to create a genuine fact issue as to whether the defendants' legitimate non-retaliatory grounds for his termination—as articulated in the dismissal notice and through the appeal process—were pretexts for retaliation” and that Plaintiff “has been unable to create a genuine fact issue as to the element of but-for causal linkage.” Dkt. No. 132 at 8–9. For his part, Plaintiff offers little help to the Court, which has no “duty to sift through the record in search of evidence to support a party's opposition to summary judgment.” Adams, 465 F.3d at 164; accord de la O v. Hous'g Auth. of El Paso, 417 F.3d 495, 501 (5th Cir.2005) ( “ ‘Judges are not like pigs, hunting for truffles buried in briefs.’ ” (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991))); Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.2003) (explaining that, even “[w]hen evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court”). Plaintiff's response to Defendants' renewed summary judgment motion actually informs the Court at one point that his original summary judgment response (containing dozens of pages of factual assertions) and brief “are so full of evidence of retaliation and causation that specifying page numbers in [Plaintiff's original summary judgment response] is unnecessary.” Dkt. No. 127 at 37.

But, for all of Plaintiff's voluminous briefing and evidence, the undersigned cannot find that Plaintiff points to evidence sufficient to raise genuine disputes of material fact as to whether the reasons offered for his termination are merely pretextual. The evidence in the summary judgment record reflects that Plaintiff was terminated for his behavior, not his protected speech. And, based on the undersigned's review of the summary judgment evidence, Defendants are correct that, “[t]o support his case for retaliatory motivation, causal connection, and pretext, [Plaintiff] still relies primarily on temporal sequence: that (1) defendants were aware of his putative protected activity and (2) took adverse actions against him afterward.” Dkt. No. 132 at 9 (citing Dkt. No. 127 at 15–28, 37–38).

In that regard, “[c]lose timing between an employee's protected activity and an adverse action against [him] may provide the ‘causal connection’ required to make out a prima facie case of retaliation.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.1997). But “temporal proximity standing alone is insufficient to establish an issue of fact as to pretext after an employer has provided a non-retaliatory reason.” Aryain, 534 F.3d at 487.

Likewise, Plaintiff, in alleging pretext, cannot survive summary judgment merely by “disputing the truth of the underlying facts” that led to an employment decision. Haverda, 723 F.3d at 596 n. 1. Simply disputing the underlying facts “merely implies that an employer may have made a mistake in deciding to take action against an employee,” and Plaintiff must still submit evidence to “support an inference that the employer had a retaliatory motive, not just an incorrect belief.” Id. Further, insofar as Plaintiff points to his other allegations of retaliation, he “cannot prove pretext simply by re-raising [his] otherwise non-actionable allegations of retaliation—such an argument offers no more than the plaintiff's subjective belief that the defendant acted in a retaliatory manner on multiple occasions.” Id.

For all of his factual assertions and pages of briefing, Plaintiff has not presented sufficient evidence to create a fact issue regarding whether Defendants would have terminated Plaintiff in the absence of the protected speech. See Haverda, 723 F.3d at 597. Plaintiff must rebut or at least establish a genuine dispute of material fact as to whether each nonretaliatory reason articulated by his employer is pretextual, see McCoy, 492 F.3d at 557, but Plaintiff has not come forward with the kind of contradictory evidence that the Fifth Circuit has held is “fodder for the jury” on the issue of causation, Click, 970 F.2d at 114.

Accordingly, although mindful of the Fifth Circuit's guidance that “summary disposition of the causation issue in First Amendment retaliation claims is generally inappropriate,” id. at 595, the undersigned concludes that Plaintiff has failed to raise a genuine dispute of material fact as the causation element of his First Amendment retaliation claim.

The Individual Defendants also argue that only final decision-makers may be held liable to First Amendment retaliation employment discrimination under Section 1983. See DePree, 588 F.3d at 288. Thus, they argue that, notwithstanding Judge Lynn's holding that there is a fact issue as to whether Jones's alleged retaliatory motive was a causal factor in McKinney's final decision, Jang cannot be liable independently if he did not make the final decision to terminate Plaintiff. See Dkt. No. 108 at 7–8, 9–10; see also DePree, 588 F.3d at 288; Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir.2004). To impute liability to Jang under the so-called “cat's paw” theory, Plaintiff must submit evidence sufficient to establish two conditions: (1) that he exhibited retaliatory animus and (2) that he “possessed leverage, or exerted influence, over the titular decision-maker.” DePree, 588 F.3d at 288.

Plaintiff admits that, “[f]or termination, the final decision-maker is McKinney,” but he argues that, “for other adverse actions, the final decision-makers are the persons who made the final decision on the particular adverse action.” Dkt. No. 127 at 11; see also id. at 3. But the undersigned has already concluded that Plaintiff's Section 1983 claim against Jang, Jones, and McKinney can only survive the qualified immunity defense insofar as Plaintiff's claim is based on his termination.

The Individual Defendants note that “Lemanski and Jang testified (and Evans declined to testify) in the November 2010 termination hearing five months after Jones recommended termination.” Dkt. No. 108 at 10. The Individual Defendants argue that, “[a]s to the termination, all [Plaintiff] can offer to show leverage and influence is (1) Jones and non-defendant Peer allegedly ‘rewarded’ Jang (which does not connect either of them to McKinney's decision); (2) Lemanski and Evans each recommended termination (though not to McKinney), and (3) Evans relied on Jang for her June 2010 evaluation of [Plaintiff's] performance (which has not been shown to have been a factor in his termination).” Dkt. No. 132 at 14 (citing Dkt. No. 127 at 38–39).

Plaintiff argues in his renewed summary judgment response that “Lemanski, Evans, and Jang were not [Plaintiff]'s co-workers but, respectively, his third, second, and first supervisors. Each of them adversely acted against [Plaintiff] and exerted influence upward in the decision chain ending with Jones and McKinney for additional adverse actions. McKinney, Jones, Lemanski, and Evans each relied on recommendations by defendants below in the decision chain, ending with Jang, who were improperly motivated.” Dkt. No. 127 at 38; see also id. at 3 (“These adverse actions separate from termination are relevant to individual liability because although McKinney has the final say on termination of employment, other defendants are responsible for retaliatory acts not only for causing the termination, but also leading up to and after the termination.”).

But Plaintiff's briefing offers no real argument, much less evidence, that Jang possessed leverage, or exerted influence, over Jones or McKinney with regard to Plaintiff's termination. See id. at 37–39. Tellingly, his briefing asks the Court to focus on Plaintiff's argument that, with regard to this issue, the Individual Defendants mistakenly “continue to argue as though termination was the only adverse and retaliatory action that mattered.” Id. at 39. But the undersigned has concluded that termination is the only adverse employment action as to which Plaintiffs First Amendment claim can survive summary judgment on the qualified immunity defense. Plaintiff's evidence of Jang's interaction with Jones otherwise appears to be limited to an email in which, according to Plaintiff, “Jang wrote to Jones putting the word investigation in quotation marks and alluding to a deal with Jones” to catch “the bigger fish,” which Plaintiff infers is a reference to Plaintiff. Dkt. No. 81 at 22; see also Dkt. No. 82 at 20; Dkt. No. 127 at 39. Plaintiff also asserts that, “[a]fter this sham investigation—Jang put the word in quotation marks—Jones and Peer did not discipline Jang but rewarded him.” Dkt. No. 127 at 39. Even if true, those factual assertions would not establish that Jang possessed leverage or exerted influence over Jones or McKinney with regard to Plaintiff's termination.

Plaintiff “points to no evidence that [Jang] had leverage over or influence on ... any ultimate decisionmaker.” Gonzales v. Dupont Powder Coatings USA, Inc., 546 Fed.Appx. 378, 379 (5th Cir.2013). “Regardless of any evidence of retaliatory animus, [Plaintiff has] offered no evidence that [Jang] exerted influence over [Jones or McKinney] in such a way as to co-opt [Jones's] decision making,” much less McKinney's final decision making. DePree, 588 F.3d at 288. Plaintiff has come forward with no evidence to establish a genuine dispute of material fact as to whether Jang possessed leverage or exerted influence over the final decisionmaker that led to Plaintiff's termination.

The undersigned recommends that Defendants' renewed motion for summary judgment on Plaintiff's First Amendment retaliation claim brought under Section 1983 should be granted. B. Grounds for summary judgment as to Title VII retaliation claim not previously reached

To establish his prima facie case of retaliation under Title VII, Plaintiff must show: (1) that he engaged in activity protected by Title VII; (2) that he suffered an adverse employment action; and (3) that a causal link existed between the protected activity and the adverse employment action. See Aryain, 534 F.3d at 484; McCoy, 492 F.3d at 556; Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir.2002). The McDonnell Douglas burden-shifting framework applies to retaliation claims. See McCoy, 492 F.3d at 556. Even if Plaintiff has established the causal link required to make out a prima facie case, where the defendants have offered a legitimate, nondiscriminatory reason for the adverse action, Plaintiff “must establish that his ... protected activity was a but-for cause of the alleged adverse action by the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, ––– U.S. ––––, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013); Feist v. La., Dept. of Justice, Office of the Atty. Gen., 730 F.3d 450, 454–55 (5th Cir.2013).

Defendants' renewed summary judgment motion, however, presents their arguments regarding Plaintiff's Title VII and Section 1983 retaliation claims together, although they argue (correctly) that the Title VII claim must be decided without regard to the Individual Defendants' qualified immunity defense. See Dkt. No. 108 at 7; Dkt. No. 132 at 2–15. In so doing, they fail to sufficiently brief the elements of Plaintiff's Title VII retaliation claim, which—however much it may overlap in its factual basis with his First Amendment claim—is subject to different standards than the Section 1983 retaliation claim and which Plaintiff himself distinguishes from his First Amendment retaliation claim. See Dkt. No. 127 at 35 (“Because many of [Plaintiffs] acts are protected by both Title VII and the First Amendment, [Plaintiff] uses some, but not nearly all, of the facts in both retaliation claims. The two claims overlap partly, not completely.”).

To begin with, as noted above, the first element depends upon a showing that Plaintiff engaged in activity protected by Title VII, rather than by the First Amendment. See McCoy, 492 F.3d at 556. But Defendants' summary judgment briefing does not clearly address whether Plaintiff's Title VII claim fails as a matter of law regarding the requirement that Plaintiff engaged in activity protected by Title VII. In that regard, Defendants explain that Plaintiff's “Title VII retaliation claim against the university ... alleges the same protected activity and the same retaliatory acts” and that “[t]he alleged protected speech for Kostic's § 1983 First Amendment retaliation claim includes his complaints of religious discrimination and of subsequent reprisals therefor, on which his Title VII claim is based, as well as other speech, such as his remarks about laboratory safety.” Dkt. No. 108 at 7 & n. 4 (footnote omitted). Defendants also assert that Plaintiff's “February 2010 EEOC charge was protected by Title VII from retaliation only insofar as it accused Jang of Title VII violations” and that, “[t]o the extent that the charge complained of ‘religious influence in TAMUC curriculum [ ] and public, religious ceremonies at TAMUC conducted by top TAMUC officials' (doc. 127 at 17), it is not protected by Title VII.” Dkt. No. 132 at 3 & n. 2. In their original summary judgment reply brief, incorporated by reference in their renewed motion, Defendants asserted only that “ ‘oral complaints concerning Jones's acts of January 16 and April 9, 2009’ (doc. 40 ¶ 131) are not protected by Title VII's anti-retaliation provision because, while allegedly expressing church-state separation issues, they did not assert or describe employment discrimination.” Dkt. No. 62 at 1–2; see also Dkt. No. 61 at 48. But Defendants otherwise briefed their renewed summary judgment motion as if the Court's analysis should not distinguish between what is protected under the First Amendment and Title VII. See, e.g., Dkt. No. 132 at 2.

Under these circumstances, particularly where Judge Lynn's order, by its terms, narrowly permitted a second summary judgment motion on the immunity defenses, and where Defendants have so sparsely addressed and insufficiently briefed the issue of Title VII-protected activity, the undersigned recommends that there is no basis to grant summary judgment on the protected activity element of Plaintiff's Title VII claim. Cf. Petrie, 904 F.Supp.2d at 585 (“Defendants have not fully briefed the issue of causation, and the Court finds that they have not definitively disproven it as a matter of law.”).

Defendants' renewed summary judgment briefing does address the standard for an adverse employment action on a Title VII retaliation claim—which, as explained above, may not apply to the same element on a First Amendment retaliation claim—but Defendants' briefing amounts to little more than conclusory assertions and citations to prior decisions. See Dkt. No. 132 at 6–8. See generally Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 331 (5th Cir.2009) (“To constitute prohibited [Title VII] retaliation, an employment action must be ‘materially adverse,’ one that would ‘dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.’ The purpose of this objective standard is ‘to separate significant from trivial harms' and ‘filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.’ ” (quoting Burlington, 548 U.S. at 68, 126 S.Ct. 2405; internal citation omitted)). Defendants' renewed summary judgment motion itself does not even raise an argument directed to whether Plaintiff can prove the adverse employment action element of either of his retaliation claims. See Dkt. No. 108. But “[w]hether a reasonable employee would view the challenged action as materially adverse involves questions of fact generally left for a jury to decide.” McArdle v. Dell Products, L.P., 293 Fed.Appx. 331, 337 (5th Cir.2008) (citing Burlington, 548 U.S. at 71–73, 126 S.Ct. 2405). Under these circumstances, the undersigned concludes that Defendants have not fully briefed the issue of materially adverse actions for purposes of the Title VII retaliation claim and that there is no basis to grant summary judgment on the adverse employment action element of Plaintiff's Title VII claim. See Petrie, 904 F.Supp.2d at 585.

Defendants' renewed summary judgment motion likewise offers no arguments that are specifically addressed to the causation element of Plaintiffs Title VII claim. After the Supreme Court's Nassar decision, causation for a Title VII retaliation claim may involve a higher standard for a plaintiff than that which he must satisfy to prevail on a First Amendment retaliation claim under Section 1983. See Mooney, 538 Fed.Appx. at 453 n. 4. But, outside of a notice of supplemental authority bringing the Nassar decision to the Court's attention, see Dkt. No. 142, Defendants' renewed summary judgment briefing does not analyze the causation elements of Plaintiff's claims separately, see Dkt. No. 108 at 7–9,11–12; Dkt. No. 132 at 8–15.

Even insofar as Defendants may have more clearly distinguished their arguments as to causation for each claim in their original summary judgment briefing, those motions are no longer before the Court. Judge Lynn ordered only that “[t]he new motion and subsequent briefing may be substantially identical to the portions of the briefing on Defendants' original Motion for Summary Judgment directed to the immunity defenses.” Dkt. No. 106. Defendants' wholesale citation in their renewed summary judgment motion and reply to large sections of their prior briefing does not substitute for actual arguments that direct the Court to why summary judgment should be granted on Plaintiff's Title VII claim on the renewed motion. This is particularly so where Judge Lynn's order, by its terms, narrowly permitted a second summary judgment motion on the immunity defenses and where the qualified immunity defense admittedly does not apply to Plaintiff's Title VII claim and so does not function to limit the adverse action at issue on the causation analysis to Plaintiff's termination.

For all these reasons, the undersigned recommends that there is no basis to grant summary judgment on the causation element of Plaintiff's Title VII claim. See Petrie, 904 F.Supp.2d at 585 (“Defendants have not fully briefed the issue of causation, and the Court finds that they have not definitively disproven it as a matter of law.”).

The undersigned recommends that Defendants' renewed motion for summary judgment on Plaintiff's Title VII retaliation claim should be denied. C. Grounds for summary judgment as to defamation claim not previously reached

Defendant Jang first argues that the defamation claim is jurisdictionally barred by the election of remedies provision of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code Ann. § 101.106(a). Plaintiff does not address this argument.

The election of remedies provision of the Texas Tort Claims Act confers immunity from suit or recovery, and “[i]mmunity from suit deprives a trial court of jurisdiction.” Maverick Cnty. Hosp. Dist. v. Martin, 376 S.W.3d 163, 166 (Tex.App.-San Antonio 2012, pet. denied) (citing Franka v. Velasquez, 332 S.W.3d 367, 369 (Tex.2011)). Section 101.106(a) of the Tort Claims Act provides that “[t]he filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.” Tex. Civ. Prac. & Rem.Code Ann. § 101.106(a).

Under Texas law, a suit against a government employee in his official capacity is a suit against his government employer with one exception: an action alleging that the employee acted ultra vires. See Franka, 332 S.W.3d at 382–83. With that exception, an employee sued in his official capacity has the same governmental immunity, derivatively, as his government employer. See id. But public employees are individually liable for their own torts, even when committed in the course of employment, and suit may be brought against a government employee in his individual capacity. Id. at 383.

Defendant Jang argues that the conduct on which Plaintiff's defamation claim is based all occurred in the course and scope of his employment. However, Judge Lynn has concluded that Defendant Jang failed to adequately develop the evidence of whether Jang was acting within the scope of his employment when he made the allegedly defamatory remarks. Jang also asserts that Plaintiff relies on inadmissible hearsay and that Plaintiff cannot show Jang published a defamatory statement or acted with actual malice. Defendant Jang has failed to come forward with additional evidence or to adequately develop the evidence on these issues, either.

Thus, at least at this stage, the undersigned cannot conclude that Plaintiff's defamation claim against Jang is barred by the Texas Tort Claims Act. 2. Whether Defendant Jang enjoys qualified privilege

Defendant Jang also argues that he is shielded by qualified privilege. See Dkt. No. 108 at 17, Dkt. No. 62 at 40–41. Qualified privilege, “which is a Texas common law defense to defamation,” is distinct from the affirmative defenses of qualified immunity to Section 1983 claims and state law “official immunity” as to Texas state law claims. See McIntosh v. Partridge, 540 F.3d 315, 326 n. 15 (5th Cir.2008). But, like those defenses, under Texas law, “qualified privilege is an affirmative defense” that must be raised in an answer as required by Rule 8(c). Id. at 326. Plaintiff now complains that Jang waived this defense by not including it in his answer, see Dkt. No. 127 at 41, but Defendants raised this defense in their original summary judgment motion, see Dkt. No. 62 at 40–41, and Plaintiff did not raise waiver in responding to that motion, see Dkt. No. 81; Dkt. No. 82 at 32–33. The undersigned recommends that the Court reject this lately-raised waiver argument where Jang raised the issue at a pragmatically sufficient time and Plaintiff has not shown any prejudice in his ability to respond. See Pasco, 566 F.3d at 577.

Qualified privilege exists when a communication is made in good faith and the author, the recipient or a third person, or one of their family members, has an interest that is sufficiently affected by the communication. See Thomas–Smith v. Mackin, 238 S.W.3d 503, 509 (Tex.App.-Houston [14th Dist] 2007, no pet.) (citing Cain v. Hearst Corp., 878 S.W.2d 577, 582 (Tex.1994)). Voluntary communications are privileged “if the relationship between the parties is such that it is within generally accepted standards of decent conduct to furnish the information for the protection of the recipient.” Burch v. Coca–Cola, Co., 119 F.3d 305, 324 (5th Cir.1997) (citations omitted).

Based on the evidence discussed above, there are genuine disputes of material fact as to whether Jang was acting in good faith concerning the April 11, 2007 memo. Accordingly, the Court should deny summary judgment on Jang's qualified privilege defense.

In their renewed summary judgment motion, Defendants also took the opportunity to reargue two grounds for summary judgment that Judge Lynn already rejected. See Dkt. No. 108 at 11–13. The standards for a motion for reconsideration are well known:

The Federal Rules of Civil Procedure do not specifically provide for motions of reconsideration, and thus a motion for reconsideration will be treated as a motion to alter or amend the judgment under Rule 59(e). A motion for reconsideration “is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.” Due to its extraordinary nature, Rule 59(e) favors denial of motions to alter or amend a judgment, and relief should only be granted where the movant has presented substantial reasons for reconsideration. To prevail on a motion for reconsideration, the movant must show either that: “(1) the motion is necessary to correct a manifest error of fact or law; (2) the movant presents newly discovered or previously unavailable evidence; (3) the motion is necessary in order to prevent manifest injustice; or (4) the motion is justified by an intervening change in the controlling law.”
United States ex rel. Colquitt v. Abbott Labs., 864 F.Supp.2d 499, 539 (N.D.Tex.2012) (citations omitted). The undersigned concludes that, although these arguments are beyond the scope of Judge Lynn's order granting Defendants leave “to file a second motion for summary judgment on the remaining claims, based on the defenses of qualified and official immunity,” Dkt. No. 106, even treating them as permissibly raised as part of a motion to reconsider, these arguments fail under the governing standard.

First, Defendants argue that Judge Lynn erred in holding that Jang has the burden to establish his immunity from suit under Section 101.106 of the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code § 101.106(f). But to support this argument, Defendants point to federal law on the burden of establishing qualified immunity. The immunity afforded by Section 101.106 is not qualified immunity. It is an affirmative defense, as to which a defendant bears the burden of proof, see Kelley v. Chambers Cnty., Tex., No. 3:12–CV–00194, 2013 WL 1003455, at *4 (S.D.Tex. Mar. 13, 2013), and it is not subject to a specific exception to that general rule, as is qualified immunity, see Brumfield v. Hollins, 551 F.3d 322, 326–27 (5th Cir.2008) (“Although [qualified immunity is] nominally an affirmative defense, the plaintiff has the burden to negate the defense once properly raised.”). Rather, just as with Texas state law common law official immunity, on summary judgment, a defendant must prove all of the elements of a Section 101.106(f) defense, and the Fifth Circuit follows Texas state law in determining who bears the burden of establishing such a defense on summary judgment. See Dreyer v. Yelverton, 291 Fed.Appx. 571, 578, 580 (5th Cir.2008) (official immunity); Murray v. Earle, 405 F.3d 278, 294 (5th Cir.2005) (official immunity).

Apart from this legally mistaken argument, Defendants have not otherwise demonstrated a manifest error of fact or law; newly discovered or previously unavailable evidence; a need to prevent manifest injustice; or any intervening change in the controlling law that would merit or require reconsideration of Judge Lynn's decision.

Second, Defendants argue for reconsideration of Judge Lynn's determination that a fact question exists as to whether or not the Plaintiff was terminated in retaliation for protected conduct, where the undisputed evidence is that Chancellor McKinney did not rely exclusively on the appeals committee and therefore the issue of whether the committee was independent is irrelevant. Defendants argue that Plaintiffs summary judgment evidence does not create a genuine fact issue of retaliatory motivation as to Jones. The undersigned is recommending that the Individual Defendants be granted summary judgment on Plaintiff's First Amendment retaliation claim but that, for the reasons explained above, summary judgment should not be granted on Plaintiff's Title VII retaliation claim. Defendant's briefing in support of this argument for reconsideration, see Dkt. No. 108 at 11–12, which the undersigned considered in the discussion above regarding Plaintiff's Title VII claim, does not change those recommendations.

Defendants' Second (Renewed) Motion for Summary Judgment [Dkt. No. 108] should be granted in part and denied in part. Defendants' Second (Renewed) Motion for Summary Judgment should be granted as to the Individual Defendants—McKinney, Jones, Lemanski, Evans, and Jang—on Plaintiff's First Amendment retaliation claim. Defendants' Second (Renewed) Motion for Summary Judgment should otherwise be denied as to all other claims and defenses. Defendants' Motion to Strike New Allegations and Evidence in Plaintiff's Response to the Renewed Motion for Summary Judgment [Dkt. No. 129] should be denied.

A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir.1996).

Filed Jan. 17, 2014. -------- Notes: