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Banik v. Tamez

United States District Court, S.D. Texas, McAllen Division

September 21, 2017

BIMAL K. BANIK, Plaintiff,
v.
ANGEL TAMEZ, et al, Defendants.

          OPINION & ORDER

          Micaela Alvarez, United States District Judge.

         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 Plaintiffs First Amendment retaliation claim against them. Plaintiffs claim rests upon three instances of alleged protected speech, and thus the Court proceeds to first examine Plaintiffs 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 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 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 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 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 Plaintiffs 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 Plaintiffs 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:

• she looked like she would "have a lot of boyfriends;"
• [Plaintiff] asked if she "regretted having a child;"
• she made "a big mistake in having a child;"
• 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, ...


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