665 F.3d 625 (5th Cir. 2011), 11-40456, Lewis v. University of Texas Medical Branch at Galveston

Docket Nº:11-40456
Citation:665 F.3d 625
Opinion Judge:PER CURIAM:
Party Name:Ray P. LEWIS, Plaintiff-Appellant, v. UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON; Dr. Garland Anderson, Provost and Dean of Medicine, in His Official Capacity; Dr. Tetsuo Ashizawa, Then Chairman of the Neurology Department, in His Official Capacity; Kirk Roden, Department Administrative Head; Dr. Claudio Soto; Dr. Pedro Fernandez-Funez, Defend
Attorney:Anthony Paul Griffin, A. Griffin Lawyers, Galveston, TX, for Plaintiff-Appellant. Daniel Clark Perkins, Asst. Atty. Gen., Austin, TX, for Defendants-Appellees.
Judge Panel:Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.
Case Date:December 20, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 625

665 F.3d 625 (5th Cir. 2011)

Ray P. LEWIS, Plaintiff-Appellant,

v.

UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON; Dr. Garland Anderson, Provost and Dean of Medicine, in His Official Capacity; Dr. Tetsuo Ashizawa, Then Chairman of the Neurology Department, in His Official Capacity; Kirk Roden, Department Administrative Head; Dr. Claudio Soto; Dr. Pedro Fernandez-Funez, Defendants-Appellees.

No. 11-40456

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

December 20, 2011

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[Copyrighted Material Omitted]

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Anthony Paul Griffin, A. Griffin Lawyers, Galveston, TX, for Plaintiff-Appellant.

Daniel Clark Perkins, Asst. Atty. Gen., Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:

In this action brought under 42 U.S.C. § 1983 for wrongful termination, Plaintiff-Appellant Ray P. Lewis (" Lewis" ) appeals the district court's grant of summary judgment on his claims against Defendants-Appellees University of Texas Medical Branch at Galveston (" UTMB" ), Dr. Garland Anderson (" Anderson" ), Dr. Tetsuo Ashizawa (" Ashizawa" ), Kirk Roden (" Roden" ), Dr. Claudio Soto (" Soto" ), and Dr. Pedro Fernandez-Funez (" Fernandez-Funez" ). We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Until his termination in 2008, Lewis was employed by UTMB, a state agency, to provide information technology support. In that role, Lewis served three UTMB departments, including Neurology, the department for which Dr. Ashizawa served as Chair and in which Drs. Soto and Fernandez-Funez worked. According to Lewis, by at least late 2007, he had problems with members of the Neurology department engaging in activities, and requesting Lewis to engage in activities, which Lewis believed violated UTMB security policies. Lewis's solution was to limit Neurology department staff's administrative access to their computers, so that Lewis could review and decline activities he felt breached UTMB policy. Lewis refused requests to allow greater access by the Neurology department staff. These actions lead Drs. Soto and Fernandez-Funez to complain about Lewis's " inflexibility" to his supervisor, Marie Camp (" Camp" ). In an email to colleagues, Dr. Soto expressed a desire to " get rid of the R problem."

In early 2008, at about the time of these complaints, Lewis requested a salary adjustment to bring his salary in line with the average of similar employees. On March 1, 2008, the request was partially granted.

Shortly thereafter, on March 20, 2008, Camp and Roden, the department administrator for the Neurology department, gave Lewis a performance evaluation. The evaluation provided Lewis an overall score of " occasionally meets," the second highest of five levels. The evaluation also noted, however, certain deficiencies in Lewis's interaction with the colleagues for whom he provided information services. The evaluation stated Lewis " needs to become more professional in dealing with the departmental customers and providing their services." 1

Lewis refused to sign the evaluation, believing that it placed disproportionate emphasis on Neurology department members' complaints, which Lewis believed were baseless and originated out of his responsibility to enforce UTMB security policies. According to Lewis, because Roden would not inform him of the reason for the noted deficiencies, Lewis conducted an

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in-person survey of the UTMB employees he supported. After Dr. Fernandez-Funez complained that Lewis could " use those surveys to identify the people getting him in trouble," Roden ordered Lewis to cease the survey, telling Lewis certain employees possibly felt " harassed." Lewis ceased the survey, but responded that he was " following the explicit directive [Roden] gave [him] to contact Neurology users" and " to identify what problems exist and [f]ormulate a solution[ ]."

On March 31, 2008, Camp issued a memorandum to Lewis providing a description of issues related to Lewis's work, and expectations as to each issue. The memorandum stated that " [i]t would be helpful to us if you would develop an action plan by no later than Monday, April 7, 2008," and requested Lewis to create proposed meeting agendas for weekly meetings with Camp to discuss Lewis's progress.

Lewis, however, did not draft an action plan nor a meeting agenda, but rather filed a grievance with Ashizawa, alleging that his evaluation was biased and without support, and that the " employee coaching" was in fact a disciplinary action representing a " collaborative attempt[ ] to justify [his] unfair compensation rate." Ashizawa denied the grievance on April 14, 2008, noting, " during the past year I repeatedly heard complaints from our basic science faculty regarding your inflexibility, which resulted in negative effects on the efficient operations of our research activities."

On April 18, 2008, Camp and Roden issued a joint " Memo of Job Performance Expectations & Improvement Plan," laying out the same issues and expectations as the March 31 memo. The memo again requested Lewis create an " action plan," extending the deadline to April 25, 2008, and again requested Lewis prepare agendas for weekly coaching and team management meetings.

Rather than complete the action plan or agendas, Lewis contacted UTMB employees for whom he provided service and solicited letters of support. A number of employees obliged, including at least two assistant professors in Neurology, but not Dr. Soto or Dr. Fernandez-Funez. On April 29, 2008, Lewis then appealed the denial of his grievance to Dr. Anderson, the Dean of UTMB's School of Medicine and Provost of UTMB. That same day, Lewis met with Camp and Roden for the purpose of developing his action plan. Lewis, however, refused to develop the plan on the ground that his grievance had been filed, and that he believed their actions were inappropriate.

Around this same time, Roden requested Lewis inquire with Information Systems about the status of a project. Instead of complying, Lewis responded, " You seem to have a close relationship with the IS director and may get a more immediate response if you pose your question to him[; ] [i]n the meantime, my best option is to be patient enough for the process to take place."

On May 12, 2008, Camp and Roden issued another memo to Lewis, which purportedly " serve[d] as a final written reminder due to [Lewis's] failure to maintain standards of conduct suitable and acceptable to the work environment as required by UTMB [Policy], specifically [Lewis's] failure to follow instructions and to cooperate with [his] supervisor, resulting in impairment of the work function." The memo further ordered Lewis to " develop[ ] a performance improvement plan, and fully participat[e] in coaching meetings." The memo warned Lewis that further failure to adhere to the expectations could result in his termination.

Lewis finally completed and submitted a plan to Camp on May 15, apparently stating

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that he would continue to follow UTMB policies. Camp, however, found Lewis's plan deficient as it omitted information that was needed in a performance improvement plan. She therefore emailed Lewis a model plan, and requested that he " define the exact...

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