Kostic v. Texas A & M University at Commerce (11 F. Supp. 3d 699, 2014)

United States District Court for the Northern District of Texas 2014-03-31

Citations

Full opinion text

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

BARBARA M.G. LYNN, District Judge.

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.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

DAVID L. HORAN, United States Magistrate Judge.

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 Plaintiffs 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.

Background

Plaintiff Nenad Kostic is a former tenured professor and former head of the chemistry department at Texas A & M University at Commerce (“TAMUC”) who was terminated for cause: He sues his former employer, TAMUC, and five TA-MUC officials and professors: Michael D. McKinney, former Chancellor; Dan R. Jones, President and Chief Executive Officer; Larry F. Lemanski, Provost and Vice President for Academic Affairs; Christine Evans, former Dean of the College of Arts and Sciences and current Professor of Agricultural Sciences; and Ben W.L. Jang, Head of the Chemistry Department and a Professor of Chemistry (the “Individual Defendants”). See Dkt. No. 40.

In his Second Amended Complaint, Plaintiff asserts a retaliation claim against TAMUC under Title VII, see id. at 4-24, and against the Individual Defendants under 42 U.S.C. § 1983, see id. at 24-35. He also asserts a defamation claim against Defendants Jones, Lemanski, Evans, and Jang. Dkt. See id. at 60-63. In addition, he asserts claims for violations of his constitutional rights of free speech and free association and deprivation of his liberty interest in his reputation and his property interest in continued employment and tenure without due process of law. See id. at 24-60.

Plaintiff and Defendants filed motions for summary judgment, see Dkt. Nos. 56 & 61, which were referred to the undersigned for recommendation. See Dkt. No. 98. The undersigned recommended that Plaintiffs Motion for Summary Judgment be denied and that Defendants’ Motion for Summary Judgment be granted. See Dkt. No. 100. Because the undersigned concluded that Defendants’ Motion for Summary Judgment should be granted on other grounds, the undersigned’s Findings, Conclusions, and Recommendation did not address the Individual Defendants’ arguments based on their defenses of qualified and official immunity. See id. at 13.

District Judge Barbara M.G. Lynn accepted in part and rejected in part the Findings, Conclusions, and Recommendation. See Dkt. No. 105. Judge Lynn accepted the Findings, Conclusions, and Recommendations as to all claims but retaliation and defamation as to Defendant Jang only and denied Defendants’ Motion for Summary Judgment on Plaintiffs claims of retaliation against all Defendants and defamation against Defendant Jang. See id.

Thereafter, Judge Lynn ordered that Defendants could file a second motion for summary judgment on the remaining claims based on the defenses of qualified and official immunity. See Dkt. No. 106. Defendants filed their Second (Renewed) Motion for Summary Judgment [Dkt. No. 108], in which they not only renew their motion for summary judgment based on the defenses of qualified and official immunity, see Dkt. No. 108 at 8, 10-12, but also seek reconsideration of the denial of summary judgment on the remaining retaliation -and defamation claims on both grounds not previously addressed and those expressly rejected in the court’s pri- or decision, see id. at 8, 14-20. The Second (Renewed) Motion for Summary Judgment also incorporates by reference several previously-filed motions and responses. See Dkt. No. 108.

Judge Lynn referred the Second (Renewed) Motion for Summary Judgment to the undersigned for recommendation. See Dkt. No. 109. Defendants subsequently filed a Motion to Strike New Allegations and Evidence in Plaintiffs Response to the Renewed Motion for Summary Judgment [Dkt. No. 129], which Judge Lynn also referred to the undersigned for determination or recommendation. See Dkt. No. 130.

Legal Standards for Summary Judgment

Under Fed.R.Civ.P. 56, summary judgment is proper “if the movant shows that 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). A factual “issue is material if its resolution could affect the outcome of the action.” Weeks Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th Cir.2003). “A factual dispute is ‘genuine,’ if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Crowe v. Henry, 115 F.3d 294, 296 (5th Cir.1997).

If the moving party seeks summary judgment as to his opponent’s claims or defenses, “[t]he moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party’s case.” Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir.1998). “Once the moving party meets this burden, the nonmoving party must set forth” — and submit evidence of — “specific facts showing a genuine issue for trial and not rest upon the allegations or denials contained in its pleadings.” Id.; see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc).

The Court is required to view all facts and draw all reasonable inferences in the light most favorable to the nonmoving party and resolve all disputed factual controversies in favor of the nonmoving party— but only if both parties have introduced evidence showing that an actual controversy exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir.2005); Lynch Props., 140 F.3d at 625. “Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment,” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir.2003), and neither will “only a scintilla of evidence” meet the nonmovant’s burden, Little, 37 F.3d at 1075. Rather, the non-moving 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). If, “after the nonmovant has been given an opportunity to raise a genuine factual issue,” “the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, then there is no genuine issue for trial.” DIRECTV, Inc. v. Minor, 420 F.3d 546, 549 (5th Cir.2005); Steadman v. Texas Rangers, 179 F.3d 360, 366 (5th Cir.1999). The Court will not assume “in the absence of any proof ... that the nonmoving party could or would prove the necessary facts” and will grant summary judgment “in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.” Little, 37 F.3d at 1075. “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment,” and “[a] failure on the part of the nonmoving party to offer proof concerning an essential element of its case necessarily renders all other facts immaterial and mandates a finding that no genuine issue of fact exists.” Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir.2006) (internal quotation marks omitted).

Analysis

I. Waiver of Defendants’ Immunity Defenses

“Qualified or ‘good faith’ immunity is an affirmative defense that must be pleaded by a defendant official.” Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Likewise, Texas state law “[ojfficial immunity is an affirmative defense that protects government employees from personal liability for certain actions taken in the course of their employment.” Ramirez v. Martinez, 716 F.3d 369, 379 (5th Cir.2013). This defense is also an affirmative defense that must be pleaded by a defendant. See Kinnison v. City of San Antonio, Civ. A. No. SA-08-CA-421-XR, 2009 WL 578525, at *4 (W.D.Tex. Mar. 5, 2009); accord Bisong v. Univ. of Houston, 493 F.Supp.2d 896, 915 (S.D.Tex.2007). The Individual Defendants did not plead the affirmative defenses of official and qualified immunity in their most recently filed answer, although they did plead these defenses in their original and first amended answers; Defendants instead assert these defenses in their motions for summary judgment. See Dkt. No. 5 (Original Answer); Dkt. No. 29 (First Amended Answer); Dkt. No. 46 (Answer to Second Amended Complaint); Dkt. No. 61 (original motion for summary judgment); Dkt. No. 108 (renewed motion for summaiy judgment).

Plaintiff argues that these affirmative defenses therefore are not properly before the Court because the Individual Defendants did not properly plead them. See Dkt. No. 82 at 33; Dkt. No. 127 at 12-14. In response, the Individual Defendants assert that Plaintiff pleaded the elements of qualified immunity in his Second Amended Complaint and asserted that the Individual Defendants could not satisfy them; therefore, the Individual Defendants claim that their denials (in their answer) of these allegations were sufficient to raise the immunity defenses. See Dkt. No. 96 at 24 (reply to original motion, referring to Dkt. No. 40 at ¶¶ 200, 270, 272, 288); Dkt. No. 132 at 17 (incorporating prior arguments by reference).

“An affirmative defense may be raised on a motion for summary judgment only if that motion is the first pleading responsive to the substance of the allegations.” United States v. Burzynski Cancer Research Inst., 819 F.2d 1301, 1307 (5th Cir.1987). That is not the case here, where Defendants’ answer was the first pleading responsive to the substance of the allegations. See Dkt. No. 46.

This raises two issues. First, did Defendants sufficiently plead an immunity defense in their answer, as they assert? And, second, even if they did not, should their failure to assert an affirmative defense in a responsive pleading result in waiver? See generally Giles v. Gen. Elec. Co., 245 F.3d 474, 491-92 (5th Cir.2001).

Turning first to qualified immunity, as to the first issue, Plaintiffs complaint does include allegations negating the substance of a qualified immunity defense, see Dkt. No. 40 at ¶¶200, 270, 272, 288, and Defendants did deny those allegations in their answer, see Dkt. No. 46 at ¶¶200, 270, 272, 288. But the anticipation of a qualified immunity defense did not relieve Defendants of the burden to affirmatively plead qualified immunity as a defense. The Supreme Court in Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), held that a defendant official has the burden of affirmatively pleading the qualified immunity defense and that the plaintiff does not have the burden of anticipating the defense and countering it. See id. at 640-41, 100 S.Ct. 1920 (“Since qualified immunity is a defense, the burden of pleading it rests with the defendant. It is for the official to claim that his conduct was justified by an objectively reasonable belief that it was lawful. We see no basis for imposing on the plaintiff an obligation to anticipate such a defense by stating in his complaint that the defendant acted in bad faith. Our conclusion as to the allocation of the burden of pleading is supported by the nature of the qualified immunity defense. As our decisions make clear, whether such immunity has been established depends on facts peculiarly within the knowledge and control of the defendant.” (citations omitted)). The same is true of the state law official immunity defense. See Kinnison, 2009 WL 578525, at *4.

Turning then to the second issue, the undersigned concludes that Defendants did not waive these defenses by failing to affirmatively plead them in their second amended answer. Although, “[a]s an affirmative defense, qualified immunity must be pled and proved by the defendant,” and, “[generally, under Rule 8(c) affirmative defenses must be raised in the first responsive pleading,” “[w]here the matter is raised in the trial court in a manner that does not result in unfair surprise ... technical failure to comply precisely with Rule 8(c) is not fatal.” Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir.2009) (internal quotation marks omitted). “An affirmative defense is not waived if the defendant raised the issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.” Id. (internal quotation marks omitted); accord Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 610 (5th Cir.2007).

Simply denying Plaintiffs allegations&emdash;however directed to the substance of an immunity defense they may have been&emdash;does not satisfy Defendants’ pleading burden under Rule 8(c). However, the practical reality is that the Individual Defendants raised the issue at a pragmatically sufficient time and Plaintiff could not have been prejudiced in his ability to respond. Plaintiff himself pleaded the opposite of the elements of the qualified immunity defense and the Individual Defendants, predictably, denied those allegations. “Qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Winston v. City of Shreveport, 390 Fed.Appx. 379, 383 (5th Cir.2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). Having forced each Defendant to deny that he or she violated another persons’s clearly established constitutional rights or did not act objectively reasonably, Plaintiff effectively put himself on notice that Defendants would allege this defense to liability. This conclusion is further supported by the fact that Plaintiff had no need to plead allegations negating the elements of either qualified or official immunity because avoiding such immunity is not an element of a claim. See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir.1995) (“Nor will it do to insist that avoiding qualified immunity is an element of a claim. As Siegert made plain, Gomez is alive and well.”); accord Crawford-El v. Britton, 523 U.S. 574, 596, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (noting that the Supreme Court has “refused to change the Federal Rules governing pleading by requiring the plaintiff to anticipate the immunity defense”); Gomez, 446 U.S. at 640, 100 S.Ct. 1920 (“Moreover, this Court has never indicated that qualified immunity is relevant to the existence of the plaintiffs’ cause of action; instead we have described it as a defense available to the official in question.”).

Further, while Plaintiff may not have pleaded the opposite of the elements of the state law official immunity defense in his second amended complaint, Defendants raised this defense in their two earlier answers, and the undersigned finds that Defendant raised the issue at a pragmatically sufficient time and that Plaintiff has not shown that he was prejudiced in his ability to respond.

Accordingly, the undersigned concludes that the Individual Defendants did not waive and may press their immunity defenses. See Johnson v. Johnson, 385 F.3d 503, 516 n. 7 (5th Cir.2004).

II. Motion to Strike

In his response to the renewed summary judgment motion, Plaintiff includes a section entitled “Additional Materially Adverse Actions” in which he discusses evidence that he did not submit or discuss in the original summary judgment filings. See Dkt. No. 127 at 8-11; see also id. at 41. Plaintiff also filed a 430-page appendix in support of his response to the renewed motion in which he submits additional documents, interrogatory answers, and deposition excerpts. See Dkt. No. 128. Defendants have filed a Motion to Strike New Allegations and Evidence in Plaintiffs Response to the Renewed Motion for Summary Judgment. See Dkt. No. 129. That motion’s gravamen is that Defendants argue the Individual Defendants did not file a new motion but instead only renewed their original motion and, therefore, Plaintiff should be limited to the evidence that he submitted in response to the original motion. See id. In their reply to Plaintiffs response to the motion to strike [Dkt. No. 133], Defendants explain that they filed the motion to strike as “a matter of principle” because they contend that Plaintiff subjected them to “months of excessive discovery demands.” Dkt. No. 140 at 1.

As discussed herein, the Individual Defendants went much further than simply renewing their original motion for summary judgment. See Section V. And Judge Lynn’s order authorizing the Individual Defendants to file a second motion for summary judgment did not impose any limitations on Plaintiffs response thereto. See Dkt. No. 106. Nor does Rule 56 limit the arguments or evidence that a nonmov-ant may raise or submit in response to a motion for summary judgment. See Fed. R. Crv. P. 56. “Just as at trial a litigant exercises a full and free choice as to what evidence to put before the factfinder, so in response to a Rule 56 motion for summary judgment the litigant exercises a full and free choice as to what evidence to put before the judge. No limitations except for the normal limits on evidence — relevance, materiality and admissibility generally — are placed on the litigants’ choice of what to submit either at trial or on a summary judgment motion (in the latter case, either on the part of the motion’s proponent or on the part of its opponent).” Conway Corp. v. Ahlemeyer, 754 F.Supp. 604, 605 (N.D.Ill.1991).

The Individual Defendants filed a second motion for summary judgment, and Plaintiff could respond to that motion with new arguments and evidence if he chose to do so. Moreover, filing a motion to strike out of apparent spite over discovery disputes is not an appropriate reason to limit Plaintiffs response to the renewed summary judgment motion. Accordingly, the undersigned concludes that Defendant’s Motion to Strike New Allegations and Evidence in Plaintiffs Response to the Renewed Motion for Summary Judgment [Dkt. No. 129] should be denied.

III. Qualified Immunity

“Qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Winston, 390 Fed.Appx. at 383 (quoting Pearson, 555 U.S. at 231, 129 S.Ct. 808); see also Harlow, 457 U.S. at 818, 102 S.Ct. 2727. A plaintiff must satisfy a two-prong test in order to overcome a qualified immunity defense. First, the plaintiff must show “that the official violated a statutory or constitutional right.” Ashcroft, v. al-Kidd, - U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). Put another way, the question is “whether the plaintiff has alleged a violation of a constitutional right.” Charles v. Grief, 522 F.3d 508, 511 (5th Cir.2008). Second, he must show that “the right was ‘clearly established’ at the time of the challenged conduct.” al-Kidd, 131 S.Ct. at 2080 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. 2727). Even if the government official’s conduct violates a clearly established right, the official is entitled to immunity if his conduct was objectively reasonable. See Davis v. McKinney, 518 F.3d 304, 317 (5th Cir.2008). Taken together, the second step in the analysis requires the Court to determine “whether the defendant’s conduct was objectively reasonable in light of the clearly established law at the time of the incident.” Charles, 522 F.3d at 511.

In both their original and renewed summary judgment motions, the Individual Defendants assert that they are entitled to qualified immunity from Plaintiffs Section 1983 retaliation claims against them because their actions were objectively reasonable. See Dkt. No. 61 at 57; Dkt. No. 62 at 55; Dkt. No. 108 at 3-5. In their renewed motion, the Individual Defendants assert that “reasonable university administrators in their position could have believed that some of Plaintiffs activity at issue was unprotected because it was undertaken in his capacity as head of the Chemistry department or as a member of the faculty and/or that these and other statements were predominately more of interest to [Plaintiff] as a member of the Chemistry faculty than to the public at large; that [Plaintiffs] almost non-stop series of denunciations over a three and a half year period, accompanied by constant accusations of defamation, retaliation, and violation of due process, along with repeated threats of litigation, were unreasonably disruptive in the small Chemistry department.” Dkt. No. 108 at 11-12 (emphasis added).

The undersigned discussed the summary judgment evidence concerning retaliation previously submitted to support the original motion in the undersigned’s prior Findings, Conclusions, and Recommendation. See Dkt. No. 100 at 4-9. Plaintiffs response to the renewed motion focuses more on alleged acts of retaliation than it does on whether the Individual Defendants enjoy qualified immunity. See Dkt. No. 127.

Once a defendant invokes his entitlement to qualified immunity, “the burden is on the plaintiff to demonstrate the inapplicability of the defense.” McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir.2002). This burden applies both at trial and on summary judgment. See id.; see also Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir.2001). The plaintiff must rebut the defense by establishing that the allegedly wrongful conduct violated clearly established law. See Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir.2005). To overcome the defense of qualified immunity at the summary judgment stage, the plaintiff cannot rest on conclusory allegations or assertions but must demonstrate genuine issues of material fact regarding the reasonableness of the defendant’s conduct. See id.

The qualified immunity defense is appropriately resolved at the summary judgment stage when (1) a plaintiff has established that the defendant has engaged in the complained-of conduct or (2) the court “skip[s], for the moment, over ... still-contested matters to consider an issue that would moot their effect if proved.” Harlow, 457 U.S. at 818, 102 S.Ct. 2727; see also Haverda v. Hays Cnty., 723 F.3d 586, 599 (5th Cir.2013). “If resolution of [qualified immunity] in the summary judgment proceedings turns on what the defendant actually did, rather than on whether the defendant is immunized from liability ..., and if there are conflicting versions of his conduct, one of which would establish and the other defeat liability, then the case is inappropriate for summary judgment.’ ” Haverda, 723 F.3d at 599 (quoting Barker v. Norman, 651 F.2d 1107, 1123-24 (5th Cir. Unit A July 1981)). Although summary judgment may be appropriate based on a plaintiffs inability to prove the facts essential to recovery, this “has nothing to do with the qualified immunity defense.” Id.

A. Has Plaintiff alleged a violation of a constitutional right?

Turning to the first part of the qualified immunity test, Plaintiff argues that the Individual Defendants retaliated against him for engaging in protected speech in violation of his First Amendment rights. To prove a claim of First Amendment retaliation, a plaintiff must establish that (1) he was not speaking pursuant to his official job duties; (2) he was speaking as a citizen on a matter of public concern; (3) his interest in speaking outweighed his employer’s interest in promoting workplace efficiency; (4) he suffered an adverse employment action; and (5) the adverse action was substantially motivated by the protected speech. See Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir.2011); Petrie v. City of Grapevine, 904 F.Supp.2d 569, 576 (N.D.Tex.2012), aff'd, 546 Fed.Appx. 466 (5th Cir.2013). While the first three of these elements present questions of law for the Court to decide, the latter two are factual disputes typically decided by a jury. See id.

For the reasons explained more fully below, consideration of the fourth and fifth elements is not appropriate in this context as to the Individual Defendants’ qualified immunity defenses. Resolving those aspects of the first step of the qualified immunity analysis — whether Plaintiff has alleged a violation of his First Amendment rights or, more specifically, whether Plaintiff suffered an adverse employment action that was substantially motivated by the protected speech — turns on what the Individual Defendants actually did, rather than on whether they are immunized from liability and there are conflicting versions of the Individual Defendants’ conduct, one of which would establish and the other defeat liability. As such, in addressing the first step of the analysis of the Individual Defendants’ qualified immunity defense, consideration of the adverse employment action and causation elements are inappropriate for summary judgment, because, even if Plaintiff cannot establish a genuine issue of material fact as to these elements, this “has nothing to do with the qualified immunity defense.” Haverda, 723 F.3d at 599.

The Court should, however, resolve on summary judgment whether, as a matter of law, Plaintiffs Section 1983 retaliation claim alleges a violation of his First Amendment rights based on the first three elements of such a claim laid out above, or, put another way, whether Plaintiffs speech was protected under the First Amendment. See Petrie, 546 Fed.Appx. at 468-70. And it is to that analysis that the undersigned turns.

1. The speech at issue

Viewing the evidence in the light most favorable to Plaintiff, the speech that Plaintiff alleges was protected by the First Amendment included statements “erit-icizfing] TAMUC for wasting public funds on scholarships for hundreds of undeserving persons who were students in name only”; statements both within TAMUC and to the news media about alleged hazardous practices and an alleged cover-up after a fire in the laboratory of “Jang’s protégé” Bukuo Ni; complaints about Jang’s alleged nepotism; and reporting alleged discrepancies in Lemanski’s TAMUC job application to McKinney. Plaintiff also alleges that the Individual Defendants retaliated against him for speaking out against the alleged establishment of religion at TAMUC, including Jang’s alleged proselytization, religious discrimination in the Chemistry Department, religious influence in the TAMUC curriculum, and public religious ceremonies at TAMUC conducted by top TAMUC officials. See Dkt. No. 127 at 11-14,17, 25.

Plaintiff was employed by TAMUC as a tenured professor and Head of its Chemistry Department in June 2006. In March 2007, Plaintiff told his departmental colleagues at a faculty dinner that TAMUC was running a welfare system by wasting public funds on scholarships for academically inferior students. On April 11, 2007, other members of the Chemistry Department faculty and staff submitted a grievance against Plaintiff. Defendant Jang took the lead in preparing the grievance. After an investigation of the complaint, Plaintiff was asked, and agreed, to resign as department head on May 2, 2007.

On January 9, 2009, Chunki Shi, a former postdoctoral assistant in Jang’s research group, filed a complaint against Jang. Plaintiff assisted Shi in drafting the complaint alleging academic dishonesty and religious coercion. The religious coercion complaint was based on allegations that Jang had pressured Shi and his wife to participate in religious activities.

Also on January 9, 2009, Plaintiff filed his own complaint against Jang and in support of Shi. In his complaint, Plaintiff accused Jang of nepotism for hiring and supervising his daughter as a researcher in Jang’s own laboratory, accused Jang of religious proselytization, and stated Plaintiffs concern about “[tjoleration or encouragement by TAMUC administration of widespread religious proselytization within the university.” Plaintiff also complained that he “had to attend large, important public meetings with alumni and students on campus, in which top university officials said long prayers and invocations.... ”

Sometime in the spring of 2009, Plaintiff protested to family, friends, and some faculty members about participation in public religious ceremonies by top TAMUC officials. On April 16, 2009, Plaintiff filed a complaint with President Jones in which he included complaints about Jang’s prose-lytization of foreign students.

Plaintiff was suspended with pay in February 2010 pending a committee investigation of student complaints against him.

On March 15, 2010, while the committee investigation was in progress, a fire occurred in the laboratory of the Chemistry Building assigned to Jang’s protégé, Bu-kuo Ni. In early April, 2010, TAMUC administration instructed faculty and students not to talk to the media about the fire. Plaintiff defied the gag order and made public statements to the media, as well as to TAMUC administration, accusing the university of indifference to safety, hazardous practices, and a cover-up.

On April 22, 2010, the committee investigating Plaintiff recommended his immediate termination, and President Jones sent Plaintiff a notice of dismissal on June 17, 2010.

On October 4, 2010, Plaintiff submitted a complaint to Chancellor McKinney in which he alleged that Defendant Leman-ski’s posted curriculum vitae included inaccurate information. After an investigation, Lemanski corrected it.

Chancellor McKinney terminated Plaintiff on December 8, 2010.

2. Whether the speech was made pursuant to Plaintiffs official job duties

If made “pursuant to official duties,” speech is not constitutionally protected, no matter how great its social significance. Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692-93 (5th Cir.2007); see also Garcetti v. Ceballos, 547 U.S. 410, 424, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”). “While the court must consider factual circumstances to determine whether speech is official, the determination is still a question of law.” Gibson v. Kilpatrick, 734 F.3d 395, 400 (5th Cir.2013); see also Charles, 522 F.3d at 512 (“Whether [the plaintiff] engaged in protected speech is a purely legal question-”).

The United States Court of Appeals for the Fifth Circuit has defined “pursuant to official duties” as “activities undertaken in the course of performing one’s job.” Davis, 518 F.3d at 313. The speech need not be “required” by the plaintiffs job duties to fall within these parameters; rather, it is enough that the speech be “closely related” to the duties. Id. at 312 (citing Williams, 480 F.3d at 692). The inquiry “is a practical one,” Garcetti 547 U.S. at 424, 126 S.Ct. 1951, during which courts haye considered such nondispositive factors as the employee’s job description, whether the employee spoke on the subject matter of his employment, and whether the speech stemmed from special knowledge gained as an employee, see Williams, 480 F.3d at 692; Charles, 522 F.3d at 513. Whether a communication is internal or external in nature may also bé significant: where “a public employee raises complaints or concerns up the chain of command at his workplace about his job duties,” the speech is made pursuant to his official duties, but, when an employee “take[s] his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, these external communications are typically made as a citizen, not an employee.” Davis, 518 F.3d at 313 (citing cases); see also Charles, 522 F.3d at 514.

Plaintiffs statements criticizing TAMUC for giving scholarships to students whom he characterized as undeserving were made at a dinner with faculty colleagues and stemmed from special knowledge that he acquired as part of his official job duties as a professor. Additionally, Plaintiffs statements concerning Jang’s alleged nepotism in the Chemistry Department in which both men worked and his accusations concerning alleged discrepancies in Lemanski’s TAMUC job application are also based on special knowledge that he gained as an employee, and those complaints were made to persons in the chain of command, suggesting that the statements were made pursuant to Plaintiffs official job duties. Therefore, the undersigned concludes that Plaintiffs speech concerning the use of public funds for improper scholarships, nepotism in the Chemistry Department, and his charges about false statements in Lemanski’s job application or curriculum vitae are not protected speech.

Plaintiffs statements concerning the laboratory fire, including his safety concerns and allegations of a cover-up, were made to the media, and, while they may have been based, at least in part, on knowledge that Plaintiff acquired as an employee, these statements were not made pursuant to his official job duties and were made in defiance of his superiors’ instructions not to talk to the media. And, while some of Plaintiffs religion-based statements, such as his charges of religious discrimination and proselytization within the Chemistry Department, were arguably closely tied to his job duties, others, such as accusations of system-wide establishment of religion, were not. Nevertheless, the undersigned concludes that Plaintiffs speech concerning Jang’s proselytization, religious discrimination in the Chemistry Department, and the system-wide promotion of a particular religion by TAMUC were not made pursuant to his official job duties.

S. Whether speech involved a matter of public concern

A public employee’s speech is only constitutionally protected if it “addresses a matter of ‘public concern.’” Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 635 F.3d 685, 692 (5th Cir.2011) (quoting Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). “Whether the speech at issue is on a matter of public concern is a question of law that must be determined by the court.” Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 184 (5th Cir.2005).

“Matters of public concern are those which can be ‘fairly considered as relating to any matter of political, social, or other concern to the community.’ ” Branton v. City of Dallas, 272 F.3d 730, 739 (5th Cir.2001). Notwithstanding this principle, even when a public employee’s speech relates to a topic of public interest, as is often the case in the public employment setting, it is not considered to be on a “matter of public concern” if the speaker spoke as an employee rather than as a citizen. Harris, 635 F.3d at 692; see also Connick, 461 U.S. at 147, 103 S.Ct. 1684. Speech that is purely on a matter of personal interest is spoken as an employee and is not constitutionally protected. See Connick, 461 U.S. at 147-48, 103 S.Ct. 1684; Benningfield v. City of Houston, 157 F.3d 369, 375 (5th Cir.1998). However, “[t]he existence of an element of personal interest on the part of an employee in the speech does not prevent finding that the speech as a whole raises issues of public concern.” Dodds v. Childers, 933 F.2d 271, 273 (5th Cir.1991). Speech that touches on both matters of public and personal interest — so-called “mixed speech”— remains protected by the First Amendment as long as it was made “predominantly ‘as a citizen.’ ” Harris, 635 F.3d at 692 (quoting Dodds, 933 F.2d at 273).

In determining whether a plaintiff spoke primarily as a citizen on a matter of public concern or as an employee on a matter of personal interest, a court must consider “the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48, 103 S.Ct. 1684; Fiesel v. Cherry, 294 F.3d 664, 668 (6th Cir.2002). These factors “must be considered as a whole package, and [their] significance ... will differ depending on the circumstances of the particular situation.” Moore v. City of Kil-gore, 877 F.2d 364, 370 (5th Cir.1989).

The Fifth Circuit has recognized “three reliable principles” derived from its case law regarding whether public employee speech is made as a citizen on a matter of public concern. First, the speech’s content may relate to the public concern if it does not involve solely personal matters or strictly a discussion of management’s policies that is only interesting to the public by virtue of the manager’s status as an arm of the government. If releasing the speech to the public would inform the populace of more than the fact of an employee’s employment grievance, the content of the speech may be public in nature. Second, speech need not be made to the public, but it may relate to the public concern if it is made against the backdrop of public debate. And, third, the speech cannot be made in furtherance of a personal employer-employee dispute if it is to relate to the public concern. See Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 372 (5th Cir.2000) (citing cases), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562-63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In accordance with these precepts, the Fifth Circuit has noted that speech regarding “ ‘internal personnel disputes and working conditions’ ” will not ordinarily involve the public concern. Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir.2004) (quoting Branton, 272 F.3d at 739).

In their renewed motion, Defendants argue that Plaintiff spoke as a university employee on matters predominately of personal interest. See Dkt. No. 132 at 11-12. The undersigned agrees that Plaintiffs statements concerning student scholarships, nepotism in the Chemistry Department, and Lemanski’s job application appear to fall within this category because they were closely related to his job duties, his motivation was to speak as an employee, and they were made, at least in part, in furtherance of his ongoing employment dispute with TAMUC. Thus, those statements did not involve matters of public concern and are not protected speech. However, Plaintiffs statements concerning the safety issues in the Chemistry Department laboratory, an alleged cover up after the fire, Jang’s proselytization, religious discrimination in the Chemistry Department, and systemwide promotion of a particular religion at TAMUC did involve matters of public concern.

A Whether Plaintiff’s interest in speaking outweighed his employer’s interest in promoting workplace efficiency

Even if a public employee speaks on a matter of public concern, his speech is not protected unless the employee’s interest in expressing himself on the matter outweighs the government’s interest in promoting the efficiency of its public services. See Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). “The court will resolve the legal question[ ] of ... whether the plaintiffs interests outweigh the government’s interests.” Randolph v. Tex. Rehabilitation Comm’n, 214 Fed.Appx. 424, 426 (5th Cir.2007). To resolve this issue, the Court performs a balancing test that “in reality is a sliding scale or spectrum upon which ‘public concern is weighed against disruption’ ” to the government’s interest in efficient operation. Vojvodich v. Lopez, 48 F.3d 879, 885 (5th Cir.1995) (quoting Click v. Copeland, 970 F.2d 106, 112 (5th Cir.1992) (internal quotations omitted)). “The more central a matter of public concern is to the speech at issue, the stronger the employer’s showing of counter-balancing governmental interest must be.” Coughlin v. Lee, 946 F.2d 1152, 1157 (5th Cir.1991) (citing cases). In weighing the parties’ competing interests, the Court considers, among other things, ‘“(1) the degree to which the employee’s activity involved a matter of public concern; (2) the time, place, and manner of the employee’s activity; (3) whether close working relationships are essential to fulfilling the employee’s public responsibilities and the potential effect of the employee’s activity on those relationships; (4) whether the employee’s activity may be characterized as hostile, abusive, or insubordinate; and (5) whether the activity impairs discipline by superiors or harmony among coworkers.’ ” Jordan v. Ector Cnty., 516 F.3d 290, 299 (5th Cir.2008) (quoting Brady v. Fort Bend Cnty., 145 F.3d 691, 707 (5th Cir.1998)).

In resolving this balance, “[o]ne relevant consideration is whether the speech at issue ‘impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes performance of the speaker’s duties or interferes with the regular operation of the [public employer’s] enterprise.’ ” Morris v. Crow, 117 F.3d 449, 457 (11th Cir.1997) (quoting Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)). In this case, the summary judgment evidence shows that the manner in which Plaintiffs statements were expressed was disrespectful, demeaning, rude, and insulting and that it was perceived as such by his co-workers. Plaintiff engaged in vitriolic attacks on TAMUC’s students, faculty and staff, and his superiors. It is undisputed that Plaintiffs speech and related activities caused serious discipline problems, undermined employee morale, and impaired harmony among co-workers, so much so that numerous complaints were filed against Plaintiff by both other professors and students.

These disruptions weigh heavily in TA-MUC’s favor, and TAMUC had an interest in promoting workplace efficiency which was threatened by Plaintiffs statements concerning the use of public funds for improper scholarships, nepotism in the Chemistry Department, and pointing out discrepancies in Lemanski’s job application. But TAMUC’s interest in promoting workplace efficiency was outweighed by Plaintiffs interest in expressing himself on the subjects of religious proselytization and discrimination in Chemistry Department, and the system-wide promotion of a particular religion at TAMUC, as well as concerns about safety practices and an alleged cover-up after the Chemistry Department fire.

5. Summary of whether Plaintiffs speech was protected under the First Amendment

The undersigned concludes, as a matter of law, that Plaintiffs speech concerning whether TAMUC used public funds to award scholarships to undeserving students, his accusations of nepotism by Jang, and his criticism of Lemanski for misstatements in Lemanski’s job application at TAMUC were made pursuant to Plaintiffs official job duties and did not involve matters of public concern and that TAMUC’s interest in promoting workplace efficiency outweighed Plaintiffs interest in making those statements. Plaintiffs speech on those subjects therefore was not protected by the First

Amendment.

But the undersigned concludes, as a matter of law, that Plaintiffs statements raising the issue of Jang’s proselytization of a Chemistry Department employee (Shi) and the employee’s wife, alleging religious favoritism and discrimination in the Chemistry Department, pointing out a system-wide promotion of a particular religion at TAMUC, expressing concerns about laboratory safety, and exposing a cover-up following the fire in the Chemistry Department were not made pursuant to Plaintiffs official job duties and did involve matters of public concern and that Plaintiffs interest in making those statements outweighed TAMUC’s interest in promoting workplace efficiency. Therefore, Plaintiffs speech on those subjects was protected by the First Amendment.

B. Was the Individual Defendants’ conduct objectively reasonable in light of the clearly established law?

Turning to the second part of the qualified immunity test, insofar as Plaintiff has alleged a violation of a constitutional right, the Court must determine “whether the defendant’s conduct was objectively reasonable in light of the clearly established law at the time of the incident.” Charles, 522 F.3d at 511. This entails the two-part inquiry whether the right was “clearly established” at the time of the challenged conduct, al-Kidd, 131 S.Ct. at 2080, and, even if it was, whether the Individual Defendant’s conduct was nevertheless “objectively reasonable,” Davis, 518 F.3d at 317. These requirements combine to bear out the Fifth Circuit’s repeated observation that “[t]he qualified immunity standard ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir.2000) (quoting Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

1. Was the right clearly established?

“A government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he coutours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’” al-Kidd, 131 S.Ct. at 2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Conversely, an official’s conduct does not violate clearly established law if a reasonable official could have believed his conduct was lawful. See Anderson, 483 U.S. at 641, 107 S.Ct. 3034. “The applicable law that binds the conduct of officeholders must be clearly established at the time the allegedly actionable conduct occurs.” Wyatt v. Fletcher, 718 F.3d 496, 502-03 (5th Cir.2013). The critical question is whether the state of the law at the time gave the official “ ‘fair warning’ ” that his or her act was unconstitutional. Morgan v. Swanson 659 F.3d 359, 372 (5th Cir.2011) (en banc) (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). The Court “must ask whether the law so clearly and unambigu ously prohibited his conduct that every reasonable official would understand that what he is doing violates [the law],” and, “[t]o answer that question in the affirmative, [the Court] must be able to point to controlling authority — or a “robust consensus of persuasive authority” — that defines the contours of the right in question with a high degree of particularity.” Id. (internal quotation marks and footnotes omitted). A “ ‘case directly on point’ ” is not required. Id. at 412 (quoting al-Kidd, 131 S.Ct. at 2083). “[0]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope, 536 U.S. at 741, 122 S.Ct. 2508.

But a court must ask “not only whether courts have recognized the existence of a particular constitutional right, but also ... whether that right has been defined with sufficient clarity to enable a reasonable official to assess the lawfulness of his conduct.” Morgan, 659 F.3d at 872 (quoting McClendon, 305 F.3d at 331). “Under the Fifth Circuit standard, the doctrine of qualified immunity protects government officials from civil damages liability when they reasonably could have believed that their conduct was not barred by law, and immunity is not denied unless existing precedent places the constitutional question beyond debate ” Wyatt, 718 F.3d at 503. “This requirement establishes a high bar. When there is no controlling authority specifically prohibiting a defendant’s conduct, the law is not clearly established for the purposes of defeating qualified immunity.” Id.

“The scope of clearly established law” is a legal issue for the Court to decide. Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 456 (5th Cir.2001); see also Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994) (“Whether an asserted federal right was clearly established at a particular time, so that a public official who allegedly violated the right has no qualified immunity from suit, presents a question of law, not one of ‘legal facts.’ ”).

At the time of the alleged violation of Plaintiff’s First Amendment rights in 2009 and later, both Supreme Court and Fifth Circuit law clearly proscribed retaliation by a government employer against an employee for engaging in protected speech. See Davis, 518 F.3d at 317 (citations omitted); Petrie, 904 F.Supp.2d at 589-91; see also Haverda, 723 F.3d at 599 (“[T]here is no doubt that Haverda had a clearly established constitutional right not to be fired for engaging in protected speech.”). “More specific to the conduct at issue in this case, the law was clearly established that speech directed to a person outside of the workplace on a matter of public concern only tangentially related to official duties is speech protected by the First Amendment.” Petrie, 546 Fed.Appx. at 470; see also Petrie, 904 F.Supp.2d at 590 (“By the summer of 2009, when the alleged violation occurred, the Supreme Court and Fifth Circuit had explained that speech was not constitutionally protected if made ‘pursuant to official duties.’ The Fifth Circuit had further defined ‘pursuant to official duties’ as ‘activities undertaken in the course of performing one’s job.’ And it had clarified that an employee making external communications is typically not speaking ‘pursuant to official duties.’ ” (citations omitted)). “The law was also clear as of 2009 that a public employee’s speech as a citizen on issues of public concern, even if mixed with personal issues, was protected by the First Amendment and that courts should look to content, form, and context of the speech to evaluate this question.” Petrie, 904 F.Supp.2d at 590.

The undersigned has already concluded that, as to Plaintiffs statements raising the issue of Jang’s proselytization of a Chemistry Department employee and the employee’s wife, alleging religious favoritism and discrimination in the Chemistry Department, pointing out a system-wide promotion of a particular religion at TA-MUC, expressing concerns about laboratory safety, and exposing a cover-up following the fire in the Chemistry Department, Plaintiff was speaking as a citizen on a matter of public concern under the current law. And the law regarding this matter has been relatively unchanged since 2009. See id.

However, the Individual Defendants further argue that the law was unclear as to what constitutes an adverse employment action. Although, as discussed more fully below, Plaintiff generally asserts that he suffered more than fifty materially adverse actions, see Dkt. No. 127 at 41, the undersigned notes that the Fifth Circuit has held adverse employment actions include only ultimate employment decisions such as “discharges, demotions, refusals to hire, refusals to promote, and reprimands.” Alvarado v. Tex. Rangers, 492 F.3d 605, 612 (5th Cir.2007) (quoting Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir.2000)). That was certainly clearly established at the relevant time in 2009 and later.

Plaintiff does not assert that his demotion from head of the department was an adverse employment action. See Dkt. No. 81 at 16 (“[Plaintiff] did not complain when asked to step down as department head; he gladly resigned.... ”). However, insofar as Plaintiff is claiming that his being suspended with pay pending an investigation and given an unsatisfactory review are adverse employment actions, the undersigned concludes that the scope of Plaintiffs rights against First Amendment retaliation were not defined with sufficient clarity to enable a reasonable official to assess the lawfulness of his conduct. Generally neither a negative employment evaluation nor an employer’s internal investigation of an employee rises to the level of an adverse employment action, see Blizzard v. Marion Tech. Coll, 698 F.3d 275, 290 (6th Cir.2012); Harper v. C.R. England, Inc., 687 F.3d 297, 306 n. 31 (7th Cir.2012), Kuhn v. Washtenaw Cnty., 709 F.3d 612, 625-26 (6th Cir.2013), and it is a closer question whether being placed on paid administrative does, see McCoy v. City of Shreveport, 492 F.3d 551, 561 (5th Cir.2007); see also Gibson, 734 F.3d at 400 n. 4 (“We assume without deciding that a reprimand is an adverse employment action for the purposes of a § 1983 claim. While the Supreme Court has clarified that, under Title VII, a plaintiff must prove that a reasonable employee would have found the alleged adverse employment action ‘materially adverse,’ Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), this court has not yet decided whether the Burlington standard for adverse employment actions also applies to First Amendment retaliation cases.... ”).

Under these circumstances, the Individual Defendants’ alleged conduct did not violate clearly established law insofar as Plaintiff asserts that they retaliated against him by taking any action other than terminating him. See DePree v. Saunders, 588 F.3d 282, 288-89 (5th Cir.2009); see also Charles, 522 F.3d at 511 (“Terminating an employee for engaging in protected speech ... is an objectively unreasonable violation of such an employee’s First Amendment rights.”).

2. Was the Individual Defendants’ conduct objectively reasonable?

Even if the right was clearly established at the time of the alleged violation, a defendant will still be entitled to qualified immunity if the defendant’s conduct was “objectively reasonable in light of ‘clearly established’ law at the time of the violation.” Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 614 (5th Cir.2004). The reasonableness of an official’s actions must be assessed in light of “the facts available to him at the time of his action and the law that was clearly established at the time of the alleged illegal acts.” Id. The Individual Defendants argue that their conduct was objectively reasonable in light of the circumstances known by them at the time they acted. “[W]hether a given course of conduct would be objectively unreasonable in light of clearly established law” is a “purely legal question.” Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004); see also Brown v. Callahan, 623 F.3d 249, 253 (5th Cir.2010) (“Whether an official’s conduct was objectively reasonable is a question of law for the court, not a matter of fact for the jury.”).

a. Jang

Defendant Jang was a professor in the Chemistry Department, and he succeeded Plaintiff as head of the department. Jang was the person responsible for initiating the grievance by the Chemistry Department faculty against Plaintiff. In addition to filing other complaints against Plaintiff himself, Jang allegedly also prepared and worked with students to circulate a petition calling for Plaintiffs removal after the laboratory fire on March 15, 2010 and Plaintiffs statements to the media about hazardous practices and a cover-up. Plaintiff was removed from his position as Head of the Chemistry Department after an investigation of the Chemistry Department complaint and subsequently terminated.

Plaintiff argues that Jang’s actions were in retaliation for his assistance to Shi in preparing a complaint concerning Jang’s proselytization and Plaintiffs remarks to the media following the fire in the laboratory of Jang’s protege, Ni. Viewing the facts in the light most favorable to Plaintiff and assessed in light of the facts available to Jang at the time of his actions and the law that was clearly established at the time of the alleged illegal acts, as discussed above, a reasonable official in Jang’s position would have determined that Plaintiffs speech at issue was made as a citizen on a matter of public concern and would have known that actions resulting in Plaintiffs termination as a result of that speech could be considered unlawful. The undersigned therefore concludes that Jang’s alleged conduct was not objectively reasonable in light of clearly established law at the time of the alleged violation.

b. Evans

Defendant Evans is a former Dean of the College of Arts and Sciences and a current Professor of Agricultural Sciences. Plaintiff alleges that Evans suspended him to punish him for speaking out against establishment of religion at TA-MUC and religious favoritism by Jang. Viewing the facts in the light most favorable to Plaintiff, Evans twice negatively evaluated Plaintiffs performance and characterized Plaintiff as “a severe problem for all of us,” actions which, as discussed above, do not rise to the level of an adverse employment action. Evans and Le-manski decided to suspend Plaintiff with pay after receiving the Kopachena committee’s recommendation, which was based on an investigation of a student complaint. Evans had forwarded the student’s complaint to Lemanski and recommended considering Plaintiffs termination. Evans also instructed faculty and students not to talk to the media after the laboratory fire, but Plaintiff did so anyway.

Viewing the facts in the light most favorable to Plaintiff and assessed in light of the facts available to Evans at the time of her actions and the law that was clearly established at the time of the alleged illegal acts, the undersigned concludes that a reasonable official in Evans’s position would have determined that Plaintiffs speech was made as a citizen on a matter of public concern and, hence, protected, but would not have known that suspending Plaintiff as a result of that speech would necessarily be unlawful. The undersigned therefore concludes that Evans’s alleged conduct was objectively reasonable in light of clearly established law at the time of the alleged violation.

c. Lemanski

Defendant Lemanski is the Provost and Vice President for Academic Affairs at TAMUC. Viewing the facts in the light most favorable to Plaintiff, Lemanski participated in the decision to suspend Plaintiff with pay following the Kopachena committee’s recommendation. According to Plaintiff, Lemanski was approached by a student and provided several versions of the 400-student petition complaining about Plaintiff and calling for his ouster and also instructed an employee to solicit student signatures for the petition. Lemanski subsequently appointed the Fullwood committee to investigate Plaintiff, based, in part, on the allegations in the petition. Plaintiff reported an error in Lemanski’s military experience as shown on the TAMUC website and sought an investigation. Lemanski subsequently corrected the error. One month before Plaintiff was terminated, Le-manski criticized Plaintiff for reporting the error to TAMUC authorities.

Viewing the facts in the light most favorable to Plaintiff and assessed in light of the facts available to Lemanski at the time of his actions and the law that was clearly established at the time of the alleged illegal acts, the undersigned concludes that a reasonable official in Lemanski’s position would not have determined that Plaintiffs speech at issue as to Lemanski was made as a citizen on a matter of public concern and, hence, protected, and would not have known that suspending Plaintiff or expelling him from campus as a result of that speech would necessarily be unlawful. The undersigned therefore concludes that Lemanski’