Petition for Writ of Certiorari — Ewen v. Illinois

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90-1871 rie

JUN 6 199)

No.

SUT cxcax |

IN THE Bee

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

ODESSA AYOUB, INDEPENDENT

EXECUTRIX OF THE ESTATE

OF ABDEL K. AYOUB

Petitioner,

V.

TEXAS A & M UNIVERSITY, et al.

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES W. HILL

HAYS & ANSON

Attorneys for Petitioner

Suite 2700

600 Congress Ave.

Austin, TX 78701

(512)478-4040

(512)478-4140 (telecopier)

A447

i

QUESTION PRESENTED

Whether the court of appeals erred in ruling that a

public employee is not protected by the First Amendment

during the time period in which the employee questioned or

protested the existence of a two-tier pay system which

discriminated against non-white, foreign-born citizens.

ii

LIST OF PARTIES

Odessa Ayoub, Independent Executrix of the Estate of

Abdel K. Ayoub

Law Firm of Hays & Anson

James W. Hill

Texas A & M University System

James C. Todd

Law Firm of Ramsey and Murray

John Murray

ne

iii

TABLE OF CONTENTS

PAGE

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TABLE OF AUTHORITIES .... 2... ccc eees iv

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STATUTES AND REGULATIONS INVOLVED 1

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REASONS FOR GRANTING THE PETITION ..... 9

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TABLE OF AUTHORITIES

CASES

, 927 F.2d

WPA BED Ac hace esc sscccesss 1

Babbitt v. United Farm Workers Nat’l Union, 442

U.S. 289, 99 S. Ct. 2301, 60 L. Ed. 2d

Sa, Chae 12

Brawner v, City of Richardson, Texas, 855 F.2d

fF SE ere 16

Connick v. Myers, 461 U.S. 138, 103 S. Ct.

1684, 75 L. Ed. 2d 708 (1983) ........ 7, 16,

Givl Ww Line Consol, School Dist..

439 U.S. 410, 99 S. Ct. 693, 58 L.Ed.2d

ee a a oe ee 16

Rankin v, McPherson, 483 U.S. 378, 107 S. Ct.

pe ae 13

CONSTITUTION AND STATUTES

United States Constitution, First

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United States Constitution, Fifth

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United States Constitution, Fourteenth

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DEMOED nese eeccseesseeseenns 1

2 eee ee eee ee ee ee eee 3, 6

MISCELLANEOUS

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ie LE EL OE Ce ROR a LAL Ys Side Sty 13

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner hereby petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Fifth Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals

is reported in Ayoub v. Texas A & M Univ.,

et al., 927 F.2d 834 (Sth Cir. 1991).

JURISDICTION

The judgment of the Court of Appeals was entered on

March 29, 1991. Rehearing was denied on April 24, 1991.

App. A. On May 9, 1991, the mandate was stayed until June

8, 1991. App. E. This Court has jurisdiction under 28

U.S.C. § 1254(1).

VED

The First Amendment of the Constitution of the

United States of America provides:

Congress shall make no law

respecting an establishment of

religion, or prohibiting the free

2

exercise thereof; or abridging

the freedom of speech, or the

press; or the right of the people

peaceably to assemble, and to

petition the Government for a

redress of grievances.

The Fifth Amendment of the Constitution of the

United States of America provides:

No person shall be held to

answer for a_ capital, or

otherwise infamous crime,

unless on a presentment or

indictment of a Grand Jury,

except in cases arising in the

land or naval forces, or in the

Militia, when in actual service

in time of War or public

danger; nor shall any person be

subject for the same offence to

be twice put in jeopardy of life

or limb; nor shall be compelled

in any criminal case to be a

witness against himself, nor be

deprived of life, liberty, or

property, without due process

of law; nor shall private

property be taken for public

use, without just compensation.

The Fourteenth Amendment of the Constitution of the

United States of America provides:

3

All persons born or naturalized

in the United States, and

subject to the jurisdiction

thereof, are citizens of the

United States and of the state

wherein they reside. No State

shall make or enforce any law

which shall abridge the

privileges or immunities of

citizens of the United States;

nor shall any State deprive any

person of life, liberty, or

property, without due process

of law; nor deny to any person

within its jurisdiction the equal

protection of the law.

42 U.S.C. § 1983 provides:

Every person who, under color

of any statute, ordinance,

regulation, custom, or usage, of

any State or Territory or the

District of Columbia, subjects,

or causes to be subjected, any

citizen of the United States or

other person within the

jurisdiction thereof to the

deprivation of any rights,

privileges, or immunities

secured by the Constitution and

laws, shall be liable to the party

injured in an action at law, suit

in equity, or other proper

proceeding for redress. For the

4

purposes of this section, any

Act of Congress applicable

exclusively to the District of

Columbia shall be considered to

be a statute of the District of

Columbia.

STATEMENT

This case concerns the efforts of Dr. A. K. Ayoub

("Ayoub"), an Egyptian-born, naturalized American citizen,

to investigate and protest the pay system at Ayoub’s place of

employment at Texas A&M University.

In the early 1980’s a controversy existed at Texas

A&M University concerning the alleged existence of a two-

tier pay system which discriminated against non-white,

foreign-born professors. Dr. Ayoub was attracted to the

controversy since Ayoub was a member of the class allegedly

discriminated against by the disparate pay system.

Dr. Ayoub questioned and investigated the situation,

seeking information from the administration relating to the

disparate pay system. Dr. Ayoub’s efforts were slowed in

1983 due to the consequences of Ayoub’s fragile health. A

severe heart attack coupled with insulin dependent diabetes

prevented Dr. Ayoub from pursuing his quest until 1984.

Dr. Ayoub’s efforts to determine the existence of the two-tier

system peaked in 1984 and 1985.

ee

5

During 1984-1985, Dr. Ayoub questioned the

administration concerning the two-tier system and its adverse

effect on Ayoub’s own salary. On October 16, 1984, the

provost of Texas A&M University and Dr. Ayoub signed an

agreement which provided for an informal arbitration of Dr.

Ayoub’s salary dispute. Dr. Ayoub, however, continued

expressing his converns about the two-tier system with the

administration.

Dr. Ayoub was warned that his actions were

considered disruptive by the University, but Dr. Ayoub failed

to cease speaking out concerning pay disparity. In 1985,

Dean Herbert H. Richardson, Associate Deans Carl Erdman,

Leroy S. Fletcher and John Flipse, and Interim Department

Head Jo Howze initiated a series of actions against Dr.

Ayoub which included publicly questioning Ayoub’s mental

health and sanity, questioning Ayoub’s colleagues concerning

Ayoub’s behavior and culminating in the moving of Dr.

Ayoub’s office from the building which housed the faculty

staff for Dr. Ayoub’s department to a building housing no

teaching faculty and some distance from the classrooms

assigned to Dr. Ayoub. Dr. Ayoub protested the move on

the basis of his health and the detrimental effect upon his

students. Dr. Ayoub’s medical condition was well known to

6

the personnel at Texas A&M University. (Tr. Vol. 3, P.

195, lines 11-13). The move was protested by Dr. Ayoub’s

colleagues and investigated by a Faculty Senate

subcommittee. Several months after the Faculty Senate

subcommittee’s investigation, the administration, upon the

request of the subcommittee, returned Dr. Ayoub’s

possessions to Ayoub’s original office. During this same

period of 1984-1985, Dr. Ayoub received two merit raises

and was nominatéd by the Interim Department Head, Dr. Jo

Howze, for a major teaching award. The raises and

nomination during 1984 and 1985 are puzzling since this was

the time period in which Dr. Ayoub was described by Howze

as being mentally unstable. (Tr. Vol. 1, P. 172, Line 4).

In September 1987, Dr. Ayoub filed suit pursuant to

42 U.S.C. § 1983 against the University and the five

administrators, Flipse, Richardson, Erdman, Fletcher and

Howze. Dr. Ayoub had previously filed an EEOC complaint

in August 1987. On February 20, 1988, the EEOC granted

Ayoub a "Right to Sue" letter. The day after the granting of

Dr. Ayoub’s “Right to Sue” letter, Dr. Ayoub died due to

complications of his heart and diabetic conditions. The case

proceeded to trial by Ayoub’s executrix, Odessa Ayoub. At

the close of Ayoub’s evidence, the trial judge dismissed the

7

Title VII claim against Texas A&M University. The only

issue which was presented to the jury was Dr. Ayoub’s First

Amendment retaliation claim. The jury found that each of

the individual defendant administrators had punished Dr.

Ayoub for exercising his constitutional right to protected free

speech, and the jury awarded a total of $625,000.00 in

compensation and punitive damages against the defendant

administrators. Judge Black, the trial judge, subsequently

entered a judgment notwithstanding the verdict for

Defendants, holding that Dr. Ayoub’s speech was not

protected, that the Defendants were shielded by qualified

immunity, and that the evidence did not support the verdict.

' Dr. Ayoub’s estate timely appealed, and the appellate court

upheld the trial court’s ruling finding that Ayoub’s speech

involved only his personal situation and hence was not

protected as a matter of public concern. The other issues

raised by Ayoub on appeal were not addressed since all other

issues were premised upon a finding that Dr. Ayoub’s speech

was a matter of public concern.

In analyzing Ayoub’s speech, the appellate court cited

the test stated in Connick v. Myers, 461 U.S. 138, 103 S.Ct.

8

1684, 1690, n. 7, 1692 n. 10, 75 L.Ed.2d 708 (1983).'

Ayoub at 836. The Court found that Ayoub’s speech did not

address a matter of public concern due to the fact that Ayoub

was concerned with his own compensation, Ayoub at 836;

that Ayoub only complained about the system’s application to

Ayoub, Ayoub at 837; and that Ayoub did not air his

complaints in a manner that would call the public’s attention

to the wrong. Ayoub at 837. The Court further found that

there was no evidence that Dr. Ayoub had ever protested a

system whereby foreign-born, non-white professors were paid

less than white, native-born professors prior to Ayoub filing

his EEOC complaint in 1987.7

' “whether an employee’s speech addresses a matter of

public concern must be determined by the content, form and

context of a given statement, as revealed by the whole

record."

2

As explained in Petitioner/Appellant’s Petition for

Rehearing, the Court is in error on this point. Dr. Clinton

Phillips, a_ witness for the defense and an administrative

official, testified on direct examination by defense counsel

that Ayoub had discussed the discriminatory two-tier system

with Phillips in 1984 or 1985, some two to three years before

the EEOC complaint.

9

The Court of Appeals denied rehearing on April 24,

1991. (App. D). The mandate was stayed until June 8,

1991. (App. E).

REASONS FOR GRANTING THE PETITION

This case presents three important questions

concerning the First Amendment rights of a public employee.

The first is whether or not an employee who complains or

questions the existence of discriminatory pay system which

personally affects the employee has addressed a matter of

public concern protected by the First Amendment. The

second issue is whether or not an employee must protest the

effect of the discrimination upon other individuals similarly

situated as the effected employee. Thirdly, whether or not

the employee must complain or protest the discrimination in

a manner designed to call the attention of the public to the

discriminatory actions.

If left in place, the appellate court’s decision will have

an enormous adverse impact on the free speech rights of

public employees. Employees could be punished for seeking

information and complaining of discriminatory acts by public

employers. Retaliatory actions, such as those taken by the

administrators and described within these pleadings, would be

aliowable and unrestricted in their usage.

10

1. The first issue presented is the interrelationship

between the employee’s own concern and a matter of concern

for the public. Ayoub’s personal interest in the matter was

his fear that he had been given a lower rate of pay due to his

national origin. Ayoub discussed this concern with the

administration and fellow faculty members. Due to Ayoub’s

untimely death, the triggering cause of Ayoub’s concern is

unknown; but it is well established in the trial evidence that

other individuals were also questioning the University

concerning disparate pay scales for foreign-born professors.

(Defendant’s Exhibit 42, see Ayoub’s Charge Exhibits "A"

& “D" and A & M’s Response Attachments "B" & "C").°

If individual citizens are not allowed to question the existence

of discriminatory practices and then not allowed to pursue

dialogue in an effort to effect change in order to eliminate the

discrimination, First Amendment rights for individual citizens

are meaningless.

* Defense Exhibit 42 was admitted at the pre-trial

conference. The docket sheet reflects that on January 26,

1990, Plaintiff and Defendants listed the exhibits sent back to

the jury for deliberation. See Docket Sheet entry and Tr.

Vol. 4, p. 53, lines 6-16.

1)

The disparate pay structure which was challenged by

Dr. Ayoub did not lend itself to easy analysis. Dr. Ayoub

was concerned with a disparate pay scale directed at non-

white, foreign-born citizen faculty. The salaries of individual

professors were a matter of public record at the University.

However, the status concerning white or non-white, foreign-

born or nonforeign-born, and citizen or non-citizen, was not

a matter of public record, and given the multi-ethnic

composition of the United States in general and the diverse

background of Texas A&M University in particular, Ayoub

could not obtain the required data without the cooperation of

the University administration. Ayoub could and did compare

his own salary to the salaries of white, nonforeign-born,

citizen faculty members.

The appellate court’s decision is troubling in another

aspect. Ayoub’s speech, according to the appellate court,

was not protected because Ayoub spoke out about the effect

of the disparate pay system on himself and not others. It is

clear, both from the lower court’s opinion and the trial

record, that Ayoub’s complaint turned on his belief that he

had been discriminated against due to his national origin, and

that the discrimination was a result of a two-tier system.

12

The opinior. if left standing, would prevent an

individual from speaking out against discrimination directed

against himself, but would allow the individual to protest

discrimination against other individuals. The decision is also

silent on the number of individuals who must suffer

discrimination before the discrimination becomes a matter of

public concern. If Ayoub had protested or questioned the

effect of the discriminatory pay system upon himself and one

other non-white, foreign-born citizen professor, would it have

been enough discrimination to have become a matter of public

concern? Clearly the number of individuals affected or

potentially affected by a discriminatory practice cannot be the

controlling factor in determining whether or not speech is

protected as addressing a matter of public concern. The

language of Connick clearly contemplates that an individual |

may speak out on a matter in which the individual employee

has a personal interest. Connick at 149. In Babbitt v. United :

Farm Workers Nat’! Union, 442 U.S. 289, 99 S.Ct. 2301, 60

L.Ed.2d 895 (1979), this Court apparently assumed that an

employee, whether alone or in a group, has the right to

question the employer about work conditions "[a]ccepting that

the Constitution guarantees workers the right individually or

collectively to voice their views to their employers ... ."

Penne

13

Babbitt at 2316.

A further case, worthy of note, which stresses the

right of a public employee to speak freely on a manner of

public concern is Rankin vy. McPherson, 483 U.S. 378, 107

S.Ct. 2891, 97 L.Ed.2d 315 (1987). McPherson’s speech

concerning her hope that an assassination attempt on the

President’s life would be successful was deemed by the Court

of being worthy of First Amendment protection.

The content of the speech as reproduced and analyzed

in the opinion revealed that McPherson was concerned with

cutbacks in federal programs which she perceived to have an

adverse impact on her race. Rankin at 381. The Court noted

that McPherson was nineteen years old at the time the

controversial statement was made. Rankin at 379. However,

the Court did not consider for any purpose whether or not

McPherson had a personal or financial interest in the

programs cut back by the Reagan administration.

In the same fashion, a conversation which Ayoub had

with the associate provost of Texas A&M University was

examined during the trial. Dr. Phillips was Dean

Richardson’s superior. (Tr. Vol. 3, P. 175, Lines 18-21).

ae

Ms. Malone: “Dr. Phillips, when did Dr. Ayoub talk

to you about this two-tier system? Can

you give me an approximate year."

Dr. Phillips: “In the -- probably ’84, ’85, in that

year, maybe earlier; but as I said, my

first introduction to him was over the

fact that he was concerned about Bill |

Jones not teaching; and why, I’m not

quite sure I know."

Transcript of trial proceedings, Volume 3, p. 178, lines 13-

19.

there was a two-tier system regarding

i

|

Mr. Hill: "Did he ever discuss with you that |

engineers whereby Texas A&M hired |

foreign-born individuals at a lower

salary than native Americans?"

Dr. Phillips: “He alleged that, yes." |

Transcript of trial proceedings, Volume 3, p. 177, lines 24- |

25; Volume 3, p. 178, lines 1-2.

The Court: “What was your response to his

allegation that foreign-born professors

are treated differently?"

The Witness: “I said that I knew of no evidence of

that; that that certainly was not our

policy; that we had a lot of foreign-

born professors. And I could see no

siicecsianasmaiiii iii)

15

pattern that suggested that they were

discriminated against in any way.

If they earned different salaries, it was

because of their productivity, not

because of their origin or their color or

religion or anything else."

Transcript of trial proceedings, Volume 3, p. 178, lines 24-

25; Volume 3, p. 179, lines 1-8.

The testimony leaves no doubt that in 1984 or 1985

Dr. Ayoub was questioning the administration at Texas A&M

University about a two-tier system which discriminated

against foreign-born professors. Discrimination against even

one individual cannot be tolerated in a freedom loving

democracy. If Ayoub had been the only non-white, foreign-

born professor at his place of employment, under the analysis

presented by the appellate court, Ayoub still could not have

protested or questioned the disparate pay system. This

stifling of an individual’s right to question whether or not the

individual is a victim of discrimination is not beneficial in the

formation and maintenance of a free society.

y a There is no requirement under existing case

law that an individual must elect himself as a spokesman for

an entire class before the individual’s First Amendment rights

“vest.”

16

The First Amendment rights belong to the individual

not the class. The rights of the individual are not forfeited

simply because the conditions complained of effect the

individual expressing his concern about the matter. Brawner

y. City of Richardson, Texas, 855 F.2d 187, 192 (Sth Cir.

1988), citing Connick, 461 U.S. at 149.

3. Under existing case law, there is no

requirement that an individual voice his or her concern in a

public forum. Givham vy, Western Line Consol. School

Dist., 439 U.S. 410, 415-416 (1979), made it quite clear that

private criticism of the discriminatory practices of a public

employer did not invalidate the First Amendment rights of the

individual public employee.

The First Amendment forbids

abridgment of the “freedom of

speech." Neither the

Amendment itself nor our

decisions indicate that this

freedom is lost to the public

employee who arranges to

communicate privately with his

employer rather than to spread

his views before the public.

We decline to adopt such a

view of the First Amendment.

17

The appellate court also noted that the subject matter

of protected speech is a legal question to be determined by

the court. Ayoub at 836. The trial court and reviewing court

determined that an individual expressing concern about

discriminatory practices directed at the individual was not

expressing a matter protected by the individual’s First

Amendment rights. However, the factual issue concerning

retaliation was submitted to the jury and the finders of fact

held that Ayoub had been punished for speaking out on a

matter of public concern. (App. C). If the Fifth Circuit

opinion is allowed to stand, a public employer could punish

an employee for speaking out on racial discrimination

directed at the employee, and the employee would be without

any safeguards or protection. An environment in which a

public employee is unable to protest or question

discriminatory practices is an environment hostile to the

freedoms and rights which are the cornerstones of an

independent and free society.

CONCLUSION

In summary, the lower court decision in the case at

hand should be reversed and remanded. An individual public

employee has protected free speech rights to voice concerns

18

about a disparate pay system which affects the employee’s

salary due to the employee’s national origin.

DATED this 5th day of June, 1991.

Respectfully submitted,

James W. Hill

HAYS & ANSON

2700 One American Center

600 Congress

Austin, Texas 78701

512/478-4040

512/478-4140 (telecopier)

ATTORNEYS FOR PETITIONER

19

INDEX OF APPENDICES

APPENDIX A Decision of the Fifth Circuit

Court of Appeals .........

APPENDIX B Order of the United States

District Court for the Southern

District of Texas, Houston

0 ee ee

APPENDIX C a ee

APPENDIX D Order of the Fifth Circuit

Court of Appeals on Petition

2 eee

APPENDIX E Mandate from the Fifth Circuit

Court of Appeals .........

A-l

3027

Odessa AYOUB, Independent Executrix

of the Estate of Abdel K. Ayoub,

Plaintiff-Appellant,

v.

TEXAS A & M UNIVERSITY, et al.,

Defendants-Appellees.

No. 90-2392.

United States Court of Appeals,

Firth Circuit.

March 29, 1991.

Foreign-born professor brought action against

university, alleging that his civil rights were violated and that

his office was relocated in retaliation for his complaints about

university’s past discriminatory pay scale. Upon professor’s

death, action was pursued by executrix of his estate. The

United States District Court for the Southern District of

Texas, Norman W. Black, J., entered judgment for

university, notwithstanding jury’s verdict for executrix, and

executrice appealed. The Court of appeals, E. Grady Jolly,

Circuit Judge, held that professor’s speech regarding salary

disparity involved only his personal situation and hence was

not protected as matter of public concern.

Affirmed.

A-2

1. Constitutional Law k. note 90.1(7.2)

Public employee, like any other citizen, has right to

free and open debate, opinion, and expression, but when he

speaks as employee on matters that address only his personal

employment cenditions, he is not protected from discharge by

the First Amendment for engaging in that speech. U.S.C.A.

Const.Amend. 1.

2. Colleges and Universities k. note 8.1(1)

Constitutional Law k. note 90.1(7.2)

Foreign-born professor’s speech regarding perceived

salary disparity involved only his personal situation and hence

was not protected by First Amendment as matter of public

concern; even accepting professor’s contention that his

complaints were consistently expressed in terms of his being

victim of pay system that discriminated on basis of national

origin, indisputable facts found in record remained that

professor consistently spoke not as citizen upon matters of

public concern, but rather as employee upon matters of only

personal interest. U.S.C.A. Const.Amend. 1.

Appeal from the United States District court for the

Southern District of Texas.

Before GOLDBERG, JOLLY, and WEINER, Circuit

Judges.

A-3

E. GRADY JOLLY, Circuit Judge:

In this employment discrimination-first amendment

case, Odessa Ayoub, the executrix of Dr. A.K. Ayoub’s

("Ayoub") estate, appeals the district court’s judgment

notwithstanding the verdict entered in favor of the defendants,

Texas A & M University (the “University"). Ayoub had

sued the University and certain University officials alleging

that his civil rights had been violated when his office was

relocated in retaliation against his complaints about the

University’s past discriminatory pay scale. The district court

determined that Ayoub’s speech was not protected, that the

defendants were shielded by qualified immunity, [*3028] that

the evidence did not support the jury’s verdict and entered a

judgment N.O.V. We affirm the district court.

I

Ayoub, an Egyptian-born male, was hired by the

University as a professor of Electrical Engineering in 1968.

Among the faculty hired that year, the highest initial salary

was paid to a foreign-born professor. In 1981, Ayoub filed

a salary grievance with the University, complaining of his

low starting salary in 1968, which he felt continued to

disadvantage him. Thereafter, Ayoub complained on

numerous occasions about the perceived salary disparity.

In the summer of 1984, shortly after becoming Interim

Head of the Electrical Engineering Department, defendant Joe

Howze (“Howze"), at the Dean’s request, spent a week

reviewing Ayoub’s salary. Howze did not recommend an

adjustment. In the summer of 1985, Howze reviewed all the

salaries in the Department, recommending no raise for Ayoub

i

A-4

and four other white United States citizens. On July 29,

1985, Howze met with Ayoub. Two days later, Ayoub wrote

to defendant Richardson, Dean of the College of Engineering,

again raising the issue of his salary and complaining of

Howze’s failure to recommend him for a raise. At

Richardson’s request, defendant Associate Dean Fletcher

reviewed Ayoub’s salary. Fletcher concluded that Ayoub’s

Salary was appropriate.

In the fall of 1985, defendant Erdman became

Associate Dean of the College of Engineering. During the

fall of 1985, Howze talked at one time or another with each

of the other four defendants about Ayoub’s disruptiveness.

In response, Erdman began to investigate Howze’s complaints

about Ayoub. On November 12, 1985, Howze submitted his

resignation as Department Chairman, allegedly because he no

longer wanted to deal with Ayoub.

In late November 1985, Howze, Flipse, Erdman, and

Fletcher discussed the possibility of moving Ayoub’s office

to another building, allegedly because of Ayoub’s

disruptiveness. Howze, as Department Head, was

responsible for assigning offices within the total space allotted

his department, while Flipse was responsible for allocating

space within the Coliege of Engineering. Flipse, who had

apparently never met or spoken with Ayoub about the move,

located a new office for Ayoub in another building. Fletcher

arranged for a second parking space for Ayoub.

On December 9, 1985, Flipse wrote Ayoub, informing

him he had been reassigned to a new office and asking him

to return his present office keys by December 18. When

Ayoub asked that the move be postponed until after finals and

raised possible “unnecessary risks ... concerning [his]

A-5

health," Flipse postponed the move as requested. Subsequent

to this letter, and prior to the move, Ayoub met with

Richardson and Erdman to argue against the move, referring

to his health problems.

In February 1986, the University "Faculty Senate"

appointed a special subcommittee to investigate whether the

Engineering Department followed the correct procedural steps

before it moved Ayoub’s office. The Faculty Senate

mandated the committee from its inception to destroy all

records after it presented its report. The committee’s report,

which was admitted into evidence over the University’s

objection, concluded that Ayoub had been denied “due

process" when the administrators reached the decision to

move his office without pri-[*3029]or notice to him. A few

days after the committee’s April 9, 1986 report, Richardson

and Howze moved Ayoub back to his original office.

In September 1987, Ayoub sued the University and

five of its administrators, Flipse, Richardson, Howze,

Erdman, and Fletcher. Subsequently, in August of 1987,

Ayoub filed a charge of discrimination with the Equal

Employment Opportunity Commission. The EEOC granted

Ayoub a “Right to Sue" on February 20, 1988.

Ayoub claimed the University retaliated against him

for speaking out about an alleged salary disparity based on

national origin by moving his office to another building.

Ayoub was apparently not in good health during this

time period. He had suffered an insulin shock episode in

1983 and he had suffered a previous heart attack. In

February 1988, Ayoub died as a result of a second heart

e

:

$

:

A-6

attack. His widow, as Independent Executrix of his estate,

pursues this action.

Ii

Before trial, most of Ayoub’s claims were dismissed

except his Title VII claim for discrimination against the

University and his retaliation claim against the five

administrators. At the close of Ayoub’s evidence, Judge

Black dismissed the Title VII claim against the University.

Ayoub dropped or the court dismissed Ayoub’s other claims

and the only issues that went to the jury was Ayoub’s First

Amendment retaliation claim. The jury found that each of

these individual defendant administrators had punished Ayoub

for exercising his constitutional right to protected free speech

and awarded $625,000 in compensatory and punitive

damages.’ Judge Black subsequently entered a judgment

notwithstanding the verdict for defendants, holding that

Ayoub’s speech was not protected, that the defendants were

' The record is clear the Ayoub did not have his pay

diminished nor was he discharged constructively or

otherwise. There is no contention on appeal that Ayoub

suffered actual discrimination in terms of pay on account of

national origin or any other grounds, except at his initial

hiring in 1968. The causal connection between Ayoub’s

damages and the defendants’ conduct rests solely upon their

decision to move his office to another building on campus.

The record reflects that he was ultimately reinstated to his old

office and that he never physically moved to his new office.

Because of our disposition of the case, we do not have to get

into the knotty questions presented by the jury’s damage

award.

A-7

shielded by qualified immunity, and that the evidence did not

support the verdict. Ayoub’s estate timely appeals.

Iil

A

Ayoub raises four issues on appeal, all challenging the

district court’s justification for granting the judgment N.O.V.

Initially, Ayoub argues that the district court erred in granting

the J.N.O.V. on his First Amendment claim because the

evidence revealed that Ayoub was punished for speaking out

against a matter of public concern, that is, pay disparity

directed against the foreign-born professors. We find

ourselves in agreement with the district court that Ayoub’s

speech involved only his personal situation and hence was not

protected as a matter of public concern. According-

[*3030]}ly, we need not address the other issues raised by

Ayoub.’

Whether Ayoub's speech was addressed to a matter of

“public concern” is a question of law.

Terrell v. University

of Texas System Police, 792 F.2d 1360, 1362 n. 2 (Sth

2 The other issues that Ayoub raises on appeal all are

premised upon a finding that his speech involved a matter of

public concern and hence was protected under the First

Amendment. Accordingly, his claims that the individual

defendants were not protected by qualified immunity, that

sufficient evidence supported the jury’s verdict against the

individual defendants for violating his First Amendment

rights, and that sufficient evidence support the jury’s award

of damages, are all moot.

A-8

Cir.1982). Furthermore, “[w]hether an employee’s speech

addresses a matter of public concern must be determined by

the content, form and context of a given statement, as

revealed by the whole record." Connick v. Myers, 461 U.S.

138, 103 S.Ct. 1684, 1690 & n. 7, 1692 n. 10, 75 L.Ed.2d

708 (1983). We will, therefore, make an independent review

of the record to determine whether the district court properly

resolved the question.

B

[1,2] In Connick, the Supreme Court held “that when

a public employee speaks not as a citizen upon matter of

public concern, but instead as an employee upon matters only

of personal interest, absent the most unusual circumstances,

a federal court is not the appropriate forum in which to

review the wisdom of a personnel decision taken by a public

agency allegedly in reaction to the employee’s behavior."

103 S.Ct. at 1690 (emphasis added). A public employee, like

any other citizen, has a right to free and open debate, opinion

and expression. However, when he speaks as an employee

on matters that address only his personal employment

conditions, he is not protected from discharge for engaging

in that speech by the first amendment. This principle is

especially compelling in cases where an employee’s

expressions are protected against retaliation under Title VII

of the Civil Rights Act.

We recognized in Terrell that

Because almost anything that occurs within a

public agency could be of concern to the

public, we do not focus on the inherent

A-9

interest or importance of the matters discussed

by the employee. Rather, our task is to decide

whether the speech at issue in a particular case

was made primarily in the plaintiff’s role as a

citizen or primarily in his role as employee.

In making this determination, the mere fact

that the topic of the employee’s speech was

one in which the public might or would have

had a great interest is of little moment.

792 F.2d at 1362. (citations omitted) In Terrell, we

addressed whether the statements contained in a policeman’s

secret diary, which was critical of his supervisor and fell into

the supervisor’s hands, commented “upon matters of public

concern." Id, at 1361. In holding that his diary could not

serve as a basis for his First Amendment claim, we

emphasized that he made no effort to communicate its

contents to the public. Although the subject matter of the

comments concerning the supervisor was arguably a matter of

public concern, we concluded that Terrell’s comments in the

diary were those of an employee and not of a citizen, and

hence not protected. Id, at 1361, 1362-62.

It is clear to us that Ayoub’s speech did not involve a

matter of public concern. Ayoub’s complaints focused on his

own indi-[*3031]vidual compensation. Only when his

attorney filed the EEOC change did Ayoub characterize his

complaint in terms of a ’two-tier’ system, perpetuated by the

University, whereby foreign-bom professors were paid less

than white, native-born professors. There is no evidence that

Ayoub ever uttered such a protest at any time before the

alleged retaliatory acts by the defendants. To the extent,

however, that Ayoub may now couch his complaint in terms

of a disparate "two-tier" pay system, the record is absolutely

A-10

clear that he only complained about its application to him.

Ayoub’s own witnesses stated that Ayoub’s complaint was

that his salary was not comparable with what he perceived to

be his contribution to the University. One of his witnesses

stated, "I came to understand that the nature of the original

complaint was that he [Ayoub] felt that he had been hired at

an artificially low salary; and he claimed that was based on

his national origin." Another of his witnesses, Dr. Phillips,

testified, “Well, his real complaint was about his own salary,

we never talked about anybody else’s." Ayoub argues,

however, that his complaints were consistently expressed in

terms of his being a victim of a pay system that discriminated

on the basis of national origin. Accepting this contention, the

indisputable facts found in the record remain that Ayoub

consistently spoke not as a citizen upon matters of public

concern, but rather as an employee upon matters of only

personal interest. Certainly, Ayoub never attempted to air his

complaints in a manner that would call the public’s attention

to the alleged wrong.

In sum, there is no evidence that Ayoub expressed

concern about anything other than his own salary. Although

pay discrimination based on national origin can be a matter

of public concern, in the context in which is was presented in

this case by Ayoub, it was a purely personal and private

matter. As we found in Terrell, Ayoub was not retaliated

against, if he was at all, “for speaking ’as a citizen upon

matters of public concern,’ or for ’speak{ing] out as a citizen

on a matter of general concern, 1

not tied to_a personal

employment dispute." 792 F.2d at 1363 (citations

omitted)(emphasis in original).

A-11

VI

Accordingly, the district court’s granting of the

judgment notwithstanding the verdict is

AFFIRMED.

eee EEE

campo S Kor FRG te Oe Celie

6 Se OM ce es Bi ce Ss

B-1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ABDUL K. AYOUB, §

§

Plaintiff §

§

VS. § CIVIL ACTION

§ NO. H-87-3009

§

TEXAS A&M UNIVERSITY, §

et al., §

§

Defendants. §

ORDER

Plaintiff Odessa Ayoub is the widow of Abdul

K. Ayoubd who brought this case alleging various state and

federal claims arising out of his treatment by officials of

Texas A&M University.

At the close of the evidence, the Court granted

Defendants’ motion for directed verdict on all of Plaintiff's

claims except for the First Amendment claims.

The jury returned a verdict against the

individual Defendants in the amount of $50,000 each for

violating Professor Ayoub’s civil rights and in the amount of

B-2

$75,000 each as punitive damages for a total judgment of

$650,000 against all Defendants.

Following close of the entire case, Defendants

renewed their motion for directed verdict and, on February

5, 1990, filed a motion for judgment notwithstanding the

verdict.

The evidence at trial was that Professor Ayoub

had been an employee of the University for a number of

years prior to his death. Throughout his career, he

complained to all who would listen that his pay level was

unreasonably low and, to some associates, he complained that

his low pay was the result of his national origin.

Plaintiffs claim for damages was based on the

fact that Professor Ayoub’s office had been moved to a less

convenient location as punishment for his speech about pay

which was, to some of his superiors, disrupting his

department. The evidence was that Professor Ayoub never

personally moved to his new office and was ultimately

allowed to return to his former space. A Faculty Senate

subcommittee had found that the decision to move the office

lacked “due process" because no hearing was held before the

action was taken.

ie At ne at wit age Pad.

(ile A TC erecta RBar tae SA re eT EH

B-3

After considering all the evidence in the case

in a light most favorable to Plaintiff, the Court grants

Defendants’ motion for judgment notwithstanding the verdict.

Boeing v. Shipman, 411 F.2d 365 (Sth Cir. 1969).

There was only a scintilla of evidence that

Professor Ayoub ever spoke about any pay disparity against

foreign-born professors. Rather, all the reasonable inferences

to be adduced were that he was concerned only about his

personal alleged pay disparity. Many of the higher paid

employees in his department were foreign-born and, if Ayoub

had a lower pay, the problem arose when he was hired some

twenty years before suit was filed.

Professor Ayoub’s complaints were not on

matters of public concern, but only on matters of personal

interest. Connick v. Myers, 461 U.S. 1684 (1983),

Pickering v, Board of Education, 391 U.S. 563 (1968).

For further reason to grant Defendants’

motion, the Court finds, as a matter of law, that those

Defendants who ordered Professor Ayoub’s move are

protected by qualified immunity. Anderson v. Creighton,

107 S.Ct. 3034 (1987).

The jury totally disregarded the testimony in

the case. By way of illustration, the evidence at trial was

F

B-4

that Defendant Fletcher’s only participation in the move was

to find a parking space for Professor Ayoub near his new

office. Defendant Flipse’s only involvement was in finding

the office into which Professor Ayoub’s property was moved.

There is no evidence that Professor Ayoub complained to

Defendants Richardson, Howze, or Erdman at all about being

discriminated against because of his national origin.

There is no claim that Professor Ayoub’s death

was, in any way, caused by the alleged retaliatory conduct of

Defendants. The only damage alleged is for the moved

office. The jury award of $250,000 for actual damage was

more than grossly excessive. It was totally unsupported by

credible evidence.

There was no evidence of malice which would

support any award of punitive damages. Smith v. Wade, 461

U.S. 30 (1983).

The judgment for Plaintiff is set aside and

judgment is entered for Defendants.

Signed this 10th day of April, 1990 at

Houston, Texas.

Ls/

NORMAN W. BLACK

- UNITED STATES DISTRICT JUDGE

Se

ae ee

C-1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ABDEL K. AYOUB, §

8

Plaintiff §

§

VS. § CIVIL ACTION

§ NO. H-87-3009

§

TEXAS A&M UNIVERSITY, §

et al., §

§

Defendants. §

VERD

SPECIAL INTERROGATORY NO. 1

Do you find from a preponderance of the evidence

that Defendants, Mr. John E. Flipse, Dr. Herbert H.

Richardson, Dr. Jo W. Howze, Dr. Carl A. Erdman and Dr.

Leroy S. Fletcher, punished Dr. A. K. Ayoub for exercising

his constitutional right to protected free speech?

C-2

ANSWER "yes" or "no" for each Defendant listed

below.

Dr. Herbert H. Richardson = eae

Mr. John E. Flipse — ae

Dr. Carl A. Erdman —

Dr. Leroy S. Fletcher —_— oa

Dr. Jo W. Howze _— oa

If you have answered "no" as to all Defendants to

Interrogatory No. 1, do not answer any further

Interrogatories. If you have answers "yes" as to any of the

Defendants in Interrogatory No. 1, then answer the remaining

Interrogatories only as to that Defendant or Defendants only.

SPECIAL INTERROGATORY NO. 2

What sum of money, if any, do you find from a

preponderance of the evidence, would reasonably compensate

Plaintiff for injuries or damages proximately caused by

violations of Dr. A. K. Ayoub’s civil rights for exercising his

right to free speech?

C-3

ANSWER in dollars and cents or "none" for each

Defendant listed below.

Dr. Herbert H. Richardson _$50,000.00 _

Mr. John E. Flipse _ $50,000.00 _

Dr. Carl A. Erdman _$50,000.00 _

Dr. Leroy S. Fletcher _ $50,000.00 _

Dr. Jo W. Howze _ $50,000.00 _

C-4

SPECIAL INTERROGATORY NO. 3

Do you find from a preponderance of the evidence

that the conduct of any of the Defendants listed below was a

malicious or oppressive invasion of the rights of Dr. A. K.

Ayoub calling for deterrence and punishment?

ANSWER "yes" or "no" for each Defendant listed

below.

Dr. Herbert H. Richardson yes

Mr. John E. Flipse yes

Dr. Carl A. Erdman yes

Dr. Leroy S. Fletcher yes

Dr. Jo W. Howze yes

C-5

SPECIAL INTERROGATORY NO. 4

What sum of money, if any, do you find from a

preponderance of the evidence, that the Plaintiff should

recover as punitive damages from each of the individual

Defendants listed below?

ANSWER in dollars and cents or “none” for each

Defendant listed below.

Dr. Herbert H. Richardson _ $75,000.00 _

Mr. John E. Flipse _$75,000.00 _

Dr. Carl A. Erdman _ $75,000.00 _

Dr. Leroy S. Fletcher _ $75,000.00 _

Dr. Jo W. Howze _ $75,000.00 _

_January 26, 1990 _ illon

DATE FOREMAN

D-1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 90-2392

ODESSA AYOUB, Independent

Executrix of the Estate of

Abdel K. Ayoub,

Plaintiff-Appellant,

versus

TEXAS A & M UNIVERSITY,

ET AL.,

Defendant-Appellees.

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING

( April 24, 1991 )

Before GOLDBERG, JOLLY and WIENER, Circuit Judges.

i aan tlinn,

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the same is

hereby DENIED.

ENTERED FOR THE COURT:

/s/ E. Grady Jolly

United States Circuit Judge

E-1

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

GILBERT F. GANUCHEAU TEL. 504/589-6514

CLERK 600 CAMP STREET

NEW ORLEANS, LA 70130

May 9, 1991

Mr. James W. Hill

Attorney at Law

P.O. Drawer 2949

Longview, TX 75606

NO. 90-2392 - AYOUB vs. TEXAS A & M

(DC NO. H 87 3009)

MANDATE STAYED TO AND

INCLUDING JUNE 8, 1991

This Court has this day granted a stay of the issuance of the

mandate to the date as shown above. If during the period of

the stay there is filed with this office a notice from the clerk

of the Supreme Court that the party who has obtained the stay

has filed a petition for the writ in that court, the stay shall

continue until final disposition by the Supreme Court. Upon

the filing of a copy of an order of the Supreme Court denying

the petition for writ of certiorari, the mandate shall issue

immediately under Rule 41, FRAP.

Under revised Rule 19.1 of the Supreme Court, effective

June 30, 1980, a request to certify the record prior to action

by the Supreme Court on the petition for certiorari should not

be made as a matter of course but only when the record is

E-2

deemed essential to a proper understanding of the case by that

court.

A copy of the opinion, judgment, or Rule 47.6 Decision, and

denial of rehearing are still required by the Supreme Court to

be incorporated as an appendix to your petition. Enclosed

are copies of the said documents which have been entered in

this cause.

Very truly yours,

GILBERT F. GANUCHEAU, Clerk

/mc

By: _/s/

Deputy Clerk

Enclosures

os: Mr. James C. Todd