                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       November 2, 2006

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                              No. 05-21098
                            Summary Calendar



         FACULTY RIGHTS COALITION; WOLFGANG P HIRCZY DE MINO,

                          Plaintiff-Appellants,

                                    versus

HOSSEIN SHAHROKHI, in his official capacity as Executive Director
 of Information Services at UHD, a component of the University of
 Houston System; MOLLY WOODS, In her official capacity as Provost
                   of The University of Houston

                          Defendant-Appellees.


                          --------------------
              Appeal from the United States District Court
                   for the Southern District of Texas
                         USDC No. H-04-CV-02127
                          --------------------

Before JOLLY, DENNIS, and CLEMENT Circuit Judges.

PER CURIAM:*

     Plaintiff     De   Mino,1     an    adjunct   faculty    member    at    the

University of Houston Downtown (UHD), appeals the district court’s

grant    of   summary   judgment    in    favor    of   the   defendants,     UHD

officials, in this 42 U.S.C. 1983 action.           This case stems from UHD


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     1
        De Mino has also formed a group that he calls the Faculty
Rights Coalition to advocate on behalf of adjunct faculty members
at the university.
                                 No. 05-21098
                                      -2-

officials’s alleged violation of              Plaintiff’s First Amendment

rights,    retaliation,    and    violation    of    Plaintiff’s   Fourteenth

Amendment rights to Equal Protection of the law.              Plaintiff bases

his appeal upon the following alleged errors of the district court:

(1) the grant of summary judgment for defendants on plaintiff’s

First    Amendment   claims   (violation      by    e-mail   restrictions   and

retaliation); (2) the grant of summary judgment for defendants on

plaintiff’s Equal Protection claims; (3) the ruling that plaintiff

lacked standing to challenge the Texas statutes at issue; and (4)

award of costs to defendants.

                                  Background

     Plaintiff, in his initial complaint, focused on UHD’s policies

regarding adjunct faculty member access to their e-mail accounts.2

In his first amended complaint, he sued Shakrokhi (Executive

Director of Information Technology at UHD), and Woods (Chief

Academic Officer of UHD).          He also sought leave to add Adolfo

Santos (Administrative Assistant Chair for the Department of Social

Sciences at UHD).         In this complaint, De Mino reiterated his

complaints regarding the compensation and treatment of adjuncts, as

well as e-mail account access, specifying that adjuncts do not have

access to their e-mail accounts during any semester they are not

teaching, including the summer.         He also reiterated that he was



     2
        Specifically, De Mino alleged that when he tried to use
the e-mail system to complain about UHD compensation and
treatment of adjuncts, he was denied access to his e-mail
account.
                                   No. 05-21098
                                        -3-

denied    access    to    his   e-mail     account    in   retaliation    for    his

attempted use of the system to distribute complaints about the UHD

administration.          In this first amended complaint, he added the

allegation that, in retaliation for the current lawsuit, UHD cut

his course load from three to two classes, in an effort to deprive

him of benefits,3 terminate his active status in the Teacher

Retirement System, and reduce his pay. He further alleged a denial

of equal protection in that adjunct faculty are paid less, given

fewer benefits, denied opportunities in university governance, and

given    fewer   supporting      resources    in     comparison    to   full-time,

tenure-track       faculty      members.       Lastly,     he     challenged     the

constitutionality of Texas statutes that prohibit the unionization

of state employees and the ability of non-citizens to become labor

union officials or organizers.

     The district court granted defendants’ motions for summary

judgment on the First Amendment and Equal Protection claims, and

ruled    that    plaintiff      lacked   standing     to   challenge    the    Texas

statutes at issue.        Further, they awarded costs to the defendants.

                                   Discussion

I. First Amendment Claims

     This court reviews the grant of summary judgment de novo,

applying the same standard as the lower court.               Gowesky v. Singing

River Hospital Systems, 321 F.3d 503, 507 (5th Cir. 2003).



     3
        At UHD, adjuncts who only teach two classes are not
eligible for certain benefits.
                                No. 05-21098
                                     -4-

     Appellant urges that UHD violated his First Amendment rights

by restricting his e-mail account access in an effort to silence

his complaints about the university and further contends that UHD

retaliated against him for exercising his rights in bringing this

lawsuit.

            A. First Amendment Violation

     Appellant bases his assertions mainly          upon three actions by

UHD IT officials:        (1) disallowing adjuncts access to e-mail

accounts during the semesters they do not teach, including the

summer; (2) restricting adjuncts’ sending of e-mails; and (3)

implementing a spam filter.

     The Supreme Court has held that a public school system’s

internal mail system does not constitute a state-created public

forum.     Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 103

S.Ct. 948, 955-56 (1983). Because of this, “[i]n addition to time,

place, and manner regulations, the state may reserve the forum for

its intended purposes, communicative or otherwise, as long as the

regulation on speech is reasonable and not an effort to suppress

expression merely because public officials oppose the speaker’s

view.”     Id.   at   955,   citing   United   States   Postal   Service   v.

Greenburgh Civic Ass’n, 101 S.Ct 2676, 2684 (1981); see also Chiu

v. Plano Indep. School Dist., 260 F.3d 330, 356 (5th Cir. 2001)

(“Identity-based and subject matter distinctions in a nonpublic

forum are permissible so long as they are not a covert attempt to

suppress a particular viewpoint....”).          As such, any limitations
                                No. 05-21098
                                     -5-

imposed must be reasonable in light of the purpose served by the

forum.   Perry, 103 S.Ct. at 957; Chiu, 260 F.3d at 356.

     Defendant    Shahrokhi     presented    competent     summary   judgment

evidence to show there was no First Amendment violation in this

case.4    The    disputed     restrictions   and    the    spam   filter   were

uniformly applied system-wide and were not content-based; there is

no evidence to suggest that the goal of these policies was to

suppress any viewpoint. Further, these UHD polices were reasonable

in light of the need to control the quantity of data stored on the

system and to filter data coming into the system.            Doing away with

these    policies     would     “substantially      interfere       with    the

activities...of the school.”          Tinker v. Des Moines Independent

Community School District, 393 U.S. 503, 513 (1969).

     B. Retaliation

     Appellant      argues    that   his   course   load    was   reduced    in

retaliation for filing this lawsuit. To prove a First Amendment

retaliation claim under 42 U.S.C. 1983, a plaintiff must show: (1)

he suffered an adverse employment action; (2) his speech involved



     4
        As to the deprivation of access during non-teaching
semesters, defendant testified that the system is programmed with
the dates of an adjunct’s teaching service, after which the
system automatically cancels access. As to the restrictions on
the ability to send e-mails, defendant testified that rules had
long been promulgated to limit users to 20 megabytes of memory.
Users are warned as they approach this limit and after exceeding
it are restricted from sending e-mails. As to the spam filter,
defendant testified that it was implemented to conserve space on
the system. Defendant testified that these restrictions and the
filter were applied uniformly.
                                       No. 05-21098
                                            -6-

a matter of public concern; (3) his interest in commenting on such

matters outweighed the government employer’s interest in promoting

efficiency; and (4) his speech motivated the adverse employment

action.          Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004).

       Assuming arguendo that the speech at issue is a matter of

public concern, plaintiff has not raised a disputed fact issue

material to deciding whether the change in his teaching load in the

fall semester of 2004 resulted from his speech.                  Beattie v. Madison

County School Dist., 254 F.3d 595, 600 (5th Cir. 2001)(“Summary

judgment should be granted...when the nonmoving party fails to

meets its burden to come forward with facts and law demonstrating

a basis for recovery that would support a jury verdict.”).                         The

defendant presented summary judgment evidence via the affidavit of

Adolfo Santos to defeat the causation element.                    Defendant showed

that       it,    whenever   possible,     limits     adjuncts    to    teaching   two

sections in order to avoid the costs of benefits.                      In Fall 2004,

Santos assigned nine of ten adjuncts only two classes.5                    In Spring

2006, no adjunct was allowed to teach more than two classes.

Appellant         was   treated   no    differently    than   any      other   adjunct

following his filing of this lawsuit.                 Plaintiff failed to combat

defendant’s evidence with any of his own.                     Therefore, summary

judgment in favor of UHD was proper.                Alexander v. Eeds, 392 F.3d

138 (5th Cir. 2004) provides, “Any factual controversy will be



       5
        The one adjunct allowed to teach three classes had
seniority and was willing to teach on Saturday.
                            No. 05-21098
                                 -7-

resolved in the nonmovant’s favor, but only ‘when both parties have

submitted evidence of contradictory facts.’” Id. at 142, citing

Olabisiomotosho v. City Houston, 185 F.3d 521, 525 (5th Cir. 1999).



II. Equal Protection
     Appellant argues that UHD violated the Equal Protection Clause

of the Fourteenth Amendment by treating adjuncts less favorably

than tenured or tenure-track professors.    To establish an Equal

Protection claim, the plaintiff must prove that similarly situated

persons were treated differently.    Muhammed v. Lynaugh, 966 F.2d

901, 903 (5th Cir. 1992).   In this case, adjunct faculty are not

similarly situated to full-time faculty. Adjunct faculty typically

teach fewer classes than tenured or tenure-track professors.   They

are not held to the same expectations regarding publication.

III. Standing to Challenge Texas Statutes

          A. Section 617.002

     Appellant argues that the district court erred by determining

he lacks standing to challenge the constitutionality of Texas

Government Code § 617.002, which prohibits a political subdivision

from: (1) entering a collective bargaining agreement with a labor

organization regarding wages, hours, or conditions of employment of

public employees; and (2) recognizing a labor organization as the

bargaining agent for a group of public employees.

     Texas law makes it clear that the aforementioned provisions do

not impair the right of public employees to present grievances,
                               No. 05-21098
                                    -8-

including through a representative.6           A representative includes

unions or union members.       Sayre v. Mullins, 681 S.W.2d 25 (Tex.

1984).      Thus,   the   statutes   in   question   do   not   prevent   the

unilateral presentation of grievances by employees, regardless of

their use or non-use of a union.          Moreau v. Klevenhagen, 956 F.2d

516, 520 (5th Cir. 1992).      The statutes, instead, merely prohibit

bilateral agreements between political subdivisions and bargaining

agents.    Id.

     As such, the district court was correct in ruling that De Mino

lacks standing.     To have standing, a plaintiff must demonstrate:

(1) an injury-in-fact; (2) that is traceable to the defendant’s

actions; and (3) that will be redressed by a favorable decision.

Delta Commercial Fisheries Ass’n v. Gulf of Mexico Fishery Mgmt.

Council, 364 F.3d 269, 272 (5th Cir. 2004).          The interpretation of

the statute will not preclude appellant from presenting grievances

or organizing to advocate for better conditions for adjuncts.

Instead, its effect is aimed at the university, by forbidding it to

bargain with certain groups.

            B. Section 101.109

     Appellant argues the district court erred in ruling that he

lacked standing to challenge the constitutionality of Texas Labor

Code § 101.109.      At the district court level, appellant did not

allege that UHD invoked the provision to prevent any activity he



     6
          A representative includes unions or union members.
                                 No. 05-21098
                                      -9-

wished to pursue.       He also failed to allege or present evidence

that he sought to be a union officer or organizer, i.e., one

“...who, for financial consideration solicits membership in a labor

union or members for a labor union.”                 Tex. Lab. Code. Ann. §

101.101(2). Therefore, we find that plaintiff waived his challenge

to this statute; even if he had presented evidence at the district

court, we would find no error in the district court’s ruling.

IV. Award of Costs

      Appellant argues that the district court abused its decision

by awarding $444.40 in costs for a 101 page transcript from the

hearing in another case to clarify the relationship between De Mino

and   the   Faculty   Rights    Coalition.      He     argues   that   the    same

information was included in his complaint and could have been

verified     by   searching    the   Harris   County    website   where      D/B/A

registration was posted.

      Rule 54(d)(1) provides for recovery of costs by the prevailing

party.      Fed. R. Civ. P. 54(d)(1).         28 U.S.C. § 1920 provides a

listing of costs that may be taxed against a losing party, one of

which is “fees for...copies of papers necessarily obtained for use

in the case.”      Here, defendant obtained the transcript for use in

the case.     The district court did not abuse its discretion.



For the foregoing reasons, we AFFIRM.
