Huang v. Huang

Case: 20-50445 Document: 00515740543 Page: 1 Date Filed: 02/10/2021

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
February 10, 2021
No. 20-50445 Lyle W. Cayce
Summary Calendar Clerk

Guangcun Huang,

Plaintiff—Appellant,

versus

Tim Hui-Ming Huang; Chun-Liang Chen; Chun-Lin Lin;
Kohzoh Mitsuya; Deanna Hester; John Does; Jane Does;
University of Texas Health Science Center at San
Antonio; Jennifer S. Potter; William L. Henrich,
President, UTHSCSA; Other UTHSCSA Employees,

Defendants—Appellees.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:19-CV-763

Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-50445

Guangcun Huang sued his employer, the University of Texas Health
Science Center at San Antonio (UTHSCSA), and employees of UTHSCSA
in Texas state court, alleging various tort claims and violations of the Texas
Constitution, First Amendment, and Fourteenth Amendment. After the case
was removed to federal district court, the district court granted Defendants’
motion to dismiss for lack of jurisdiction and for failure to state a claim.
Guangcun Huang appeals. We affirm.
I.
Appellant is employed as a postdoctoral fellow at UTHSCSA. He
alleges that his former supervisor at UTHSCSA, Appellee Dr. Tim Huang,
“repeatedly promised” to promote him to the position of Assistant Professor
since he began working at UTHSCSA in April 2014, contingent on
publishing two first-author research papers. Appellant published an initial
first-author research paper in 2016. In 2018, Appellee Kohzoh Mitsuya
submitted for publication a research paper co-authored by Appellant.
Appellant alleges that Mitsuya did not have his permission to submit this
paper, which did not list Appellant as the first author.
Appellant emailed a complaint against Mitsuya to Dr. Tim Huang,
copying UTHSCSA’s human resources department, on April 8, 2018.
Appellant asserts that, in a reply email rejecting Appellant’s complaint in
which he copied the human resources department, Appellee Deanna Hester,
and other UTHSCSA employees, Dr. Tim Huang “attacked [Appellant]’s
character and professional reputation” and “made materially false
statements” that “degrad[ed] [Appellant]’s authorship.” Appellant
subsequently emailed the Dean of the School of Medicine at UTHSCSA to
appeal Dr. Tim Huang’s decision.
A staff meeting was held on April 13, 2018. Appellant alleges that
during this meeting, Dr. Tim Huang asked him to accept the actions taken by

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Mitsuya and Dr. Tim Huang with respect to the research paper, threatened
termination of Appellant’s employment, and ordered Appellant to “sit by his
desk” in the lab. According to Appellant, he filed an internal complaint
against Dr. Tim Huang as a result of this meeting, which he asserts “was
eventually upheld by UTHSCSA.” Appellant filed an additional complaint
to the University of Texas Systemwide Compliance Office on June 20, 2018,
and was eventually transferred to another lab on September 4, 2018, where
he currently works. Appellant alleges that he asked UTHSCSA about the
status of his complaint and was notified on May 8, 2019, that no further action
would be taken.
Appellant also alleges that (1) Appellee Chun-Liang Chen censored
Appellant’s use of the phrase “I think” in work-related emails; (2) Appellee
Chun-Lin Lin wrongfully claimed authorship of Appellant’s research paper;
and (3) Appellee Deanna Hester claimed that she was not “aware of
[Appellant]’s then scheduled promotion.”
On April 1, 2019, Appellant, representing himself pro se, sued
Appellees in Bexar County District Court, alleging various tort claims and
violations of the Texas Constitution, First Amendment, and Fourteenth
Amendment. Appellees Tim Hui-Ming Huang, Chun-Liang Chen, Chun-Lin
Lin, Kohzoh Mitsuya, and Deanna Hester were all timely served on June 6,
2019. These appellees removed the case to federal district court on June 28,
2019. The remaining appellees had not yet been served as of this date and
were thus not parties to the removal.

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Appellant’s Sixth Amended Complaint alleged 47 “counts” against
Appellees, summarized in the chart below. 1

Count(s) Claim(s) Defendant(s)
1-4 Variations of Defamation Huang
5-6 Defamation Per Se by Slander and Huang, Mitsuya
Conspiracy
7-8 Defamation Per Se by Libel and Huang, Mitsuya,
Conspiracy Lin
9 Defamation Per Se by Slander and/or John Doe(s)
Conspiracy and/or Jane
Doe(s), Huang
10-11 Intentional Infliction of Emotional Huang, Mitsuya
Distress and Conspiracy
12-21 Intentional Infliction of Emotional Huang
Distress
22 Fourteenth Amendment (Liberty, Huang, Henrich
Due Process and Equal Protection)
and 42 U.S.C. § 1983, and the
Constitution of the State of Texas
especially Article 1, Section 19
23 Fourteenth Amendment and 42 Hester
U.S.C. § 1983, and Violation of the
Constitution of the State of Texas
especially Article 1, Section 19 and
Section 3
24 Fraudulent Misrepresentation Huang
25-26 Fraudulent Misrepresentation and Chen, Huang
Conspiracy
27-32 Fraud and Conspiracy Huang, Mitsuya
33-34 Fraud and Conspiracy Huang, his wife,
and Hester

1
This chart was included in the district court’s order granting Appellees’ motion
to dismiss. Appellees have again provided this chart in their appellate brief.

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35 Constitution of the State of Texas Huang, Henrich
found in Article 1, Section 8
(Freedom of Speech and Press
Protection) and Section 3 and 3a
(Equal Rights and Equal Protection
Amendment), Violation of Section
1983 of Title 42 of U.S.C. and
Plaintiff’s Freedom of Speech and of
the Press granted by the First
Amendment to the U.S. Constitution,
and Violation of Due Process and
Equal Protection granted by the
Fourteenth Amendment to the U.S.
Constitution
36 Constitution of the State of Texas Huang, Henrich
found in Article 1, Section 15a and
Violation of Plaintiff’s Rights of Due
Process granted by the Fourteenth
Amendment to the U.S. Constitution
37-39 Constitution of the State of Texas Huang, Potter,
found in Article 1, Section 19 and and Henrich
Violation of Plaintiff’s Rights of Due
Process granted by the Fourteenth
Amendment to the U.S. Constitution
40 Constitution of the State of Texas Hester, Henrich
found in Article 1, Section 3 and 3a
and Violation of Plaintiff’s Equal
Protection Rights granted by the
Fourteenth Amendment to the U.S.
Constitution
41-43 Title VII of the Civil Rights Act of Huang, Chen,
1964, Hostile Work Environment, Mitsuya, Hester,
Attempted Constructive Discharge Henrich,
and Conspiracy, and Violation of the UTHSCSA, John
Constitution of the State of Texas Doe(s) and/or
found in Article 1, Section 8, Section Jane Doe(s)

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3, Section 3-a, Violation of First
Amendment and Fourteenth
Amendment granted to the U.S.
Constitution, and Violation of Section
1983 of Title 42 of U.S.C.
44-47 Constitution of the State of Texas Huang, Chen,
found in Article 1, Section 8 Hester, Potter,
(Freedom of Speech Protection) and Henrich
Section 3 and 3a (Equal Rights and
Equal Protection Amendments) and
Violation of Section 1983 of Title 42
of U.S.C. and Plaintiff’s Freedom of
Speech and Express [sic] granted by
the First Amendment to the U.S.
Constitution, Violation of Due
Process and Equal Protection granted
by the Fourteenth Amendment to the
U.S. Constitution

After allowing Appellant to amend his complaint multiple times, the
district court granted Appellees’ motion to dismiss under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6) on April 29, 2020. Appellant timely
appealed.
II.
We review a district court’s grant of a motion to dismiss de novo.
Budhathoki v. Nielsen, 898 F.3d 504, 507 (5th Cir. 2018).We review a district
court’s grant of a motion to stay discovery, denial of a motion to compel
disclosure, denial of a motion to impose sanctions, and denial of a motion to
extend a scheduling order deadline for abuse of discretion. See Richardson v.
Henry, 902 F.2d 414, 417 (5th Cir. 1990); Test Masters Educ. Servs., Inc. v.
Singh, 428 F.3d 559, 582 (5th Cir. 2005); U.S. v. Hale, 685 F.3d 522, 532 (5th
Cir. 2012).

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III.
Appellant first argues that the district court erred in granting
Appellees’ motion to dismiss for lack of subject matter jurisdiction pursuant
to Federal Rule of Civil Procedure 12(b)(1). “A motion under 12(b)(1) should
be granted only if it appears certain that the plaintiff cannot prove any set of
facts in support of his claim that would entitle him to relief.” Home Builders
Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.
1998). “[T]he burden on a [R]ule 12(b)(1) motion is on the party asserting
jurisdiction.” Castro v. United States, 608 F.3d 266, 268 (5th Cir. 2010). We
address each of the district court’s reasons for granting Appellees’ motion to
dismiss for lack of jurisdiction and, finding no error, affirm.
A. Eleventh Amendment Immunity
The district court properly dismissed Appellant’s claims against
UTHSCSA (Counts 41-43) as barred by the Eleventh Amendment. The
Eleventh Amendment immunizes states from suit in federal court absent a
waiver of this immunity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100-01 (1984). A state does not waive immunity where it is a party to a
suit that is removed to federal court and the state does not join the removal.
Frazier v. Pioneer Americas LLC, 455 F.3d 542, 546-47 (5th Cir. 2006). Under
Texas law, state universities such as UTHSCSA are agencies of the State of
Texas and thus entitled to sovereign immunity. Tex. Gov’t Code Ann.
§ 572.002(10)(B); see also United States ex rel. King v. Univ. of Tex. Health Sci.
Ctr.-Houston, 544 F. App’x 490, 495-99 (5th Cir. 2013) (concluding that the
University of Texas Health Science Center at Houston is an arm of the State
of Texas and thus entitled to sovereign immunity). UTHSCSA had not yet
been served when this case was removed to federal court and thus did not
join the removal. UTHSCSA has not otherwise waived sovereign immunity.

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As an agency of the State, UTHSCSA is entitled to Eleventh Amendment
immunity from this suit.
The district court also properly dismissed Appellant’s claims against
Appellees Henrich and Potter in their official capacities (Counts 22 and 35-
37) as barred by sovereign immunity. “Suits against state officials in their
official capacity [] should be treated as suits against the State.” Hafer v. Melo,
502 U.S. 21, 25 (1991). Henrich and Potter, both employees of UTHSCSA
and state officials, did not join the removal of this case to federal court and
did not otherwise waive sovereign immunity. Accordingly, Henrich and
Potter are entitled to Eleventh Amendment immunity from suit in their
official capacities.
B. Texas Tort Claims Act
Appellant’s state tort claims against individual Appellees in their
individual capacities (Counts 1-21, 24-34, and 41-43) were also properly
dismissed. Under Texas Civil Practice & Remedies Code § 101.106(e), if a
suit is filed “against both a governmental unit and any of its employees, the
employees shall immediately be dismissed on the filing of a motion by the
governmental unit.” Tex. Civ. Prac. & Rem. Code Ann.
§ 101.106(e). Appellant sued individual Appellees for intentional torts
arising from the same incidents for which he sued UTHSCSA. The district
court thus properly dismissed these claims under § 101.106(e)
Additionally, Texas Civil Practice & Remedies Code § 101.106(f)
provides that “[i]f a suit is filed against an employee of a governmental unit
based on conduct within the general scope of that employee’s employment
and if it could have been brought under this chapter against the governmental
unit, the suit is considered to be against the employee in the employee’s
official capacity only.” Tex. Civ. Prac. & Rem. Code Ann.
§ 101.106(f). Appellant’s claims against individual Appellees stem from

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conduct within the scope of individual Appellees’ employment and could
have been brought against UTHSCSA. These claims were thus also properly
dismissed under § 101.106(f).
C. Standing to Obtain Declaratory and Injunctive Relief
We also agree with the district court that Appellant lacks standing to
obtain his requested declaratory or injunctive relief. In his Sixth Amended
Complaint, Appellant sought a judgment declaring that certain of
UTHSCSA’s policies and actions violate constitutional rights, as well as
various forms of injunctive relief including his immediate promotion to the
position of Assistant Professor, immediate removal of any negative
information about Appellant from UTHSCSA’s records, immediate
termination of specified UTHSCSA policies and programs, and immediate
termination by UTHSCSA of each of the individual Appellees.
In order to have Article III standing, Appellant “must show an injury
in fact that is fairly traceable to the challenged action of [Appellees] and likely
to be redressed by [Appellant]’s requested relief.” Stringer v. Whitley, 942
F.3d 715, 720 (5th Cir. 2019). The district court found that Appellant’s
requested injunctive relief is “outside what this [c]ourt can order,” and
further reasoned that much of this injunctive relief would not remedy
Appellant’s alleged injuries. As to Appellant’s requested declaratory relief,
the district court found that Appellant could not make the required showing
that there is a “continuing injury or threatened future injury.” See Stringer,
942 F.3d at 720. We agree and thus affirm the district court’s grant of
Appellees’ motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1).

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IV.
Because the district court’s findings as to lack of jurisdiction under
Rule 12(b)(1) do not cover all of Appellant’s claims, 2 we turn to the district
court’s reasons for granting Appellees’ motion to dismiss for failure to state
a claim. To withstand a Rule 12(b)(6) motion to dismiss, a plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell At.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Finding no error in the district
court’s reasoning, we affirm.
A. First Amendment
In his Sixth Amended Complaint, Appellant alleged that his First
Amendment rights were violated when he reported alleged “scientific
misconduct” related to his level of authorship in the research paper
submitted by Mitsuya and when he was allegedly censored from using the
phrase “I think” in work emails (Counts 35 and 41-47). The First
Amendment limits an employer’s regulation of speech in the workplace “[s]o
long as employees are speaking as citizens about matters of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 419 (2006). Appellant did not speak to a
matter of public concern when he reported Mitsuya’s alleged misconduct, as
this reporting stemmed from Appellant’s belief that he was entitled to first

2
In particular, the district court’s jurisdictional findings do not cover Appellant’s
claims under 42 U.S.C. § 1983 against Appellees Huang, Chen, Lin, Mitsuya, and Hester,
and against Appellees Henrich and Potter in their individual capacities to the extent that
Appellant seeks damages for these claims. The district court did not make any findings in
response to Appellees’ motion to dismiss argument that individual Appellees acting in their
official capacities are not “person[s]” within the meaning of 42 U.S.C. § 1983.

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authorship of the research paper. Nor did Appellant speak to a matter of
public concern when he used the phrase “I think” in work-related emails.
The district court thus did not err in dismissing Appellant’s First
Amendment claims.
B. Fourteenth Amendment Due Process
Appellant asserted that his Fourteenth Amendment Due Process
rights were violated when he was allegedly told to “sit by his desk” in Dr.
Tim Huang’s lab, when Dr. Tim Huang “accused [Appellant] of wrongdoing
but refused to give [Appellant] a chance to clear his name,” and when the
complaints Appellant made to UTHSCSA were not acted upon (Counts 22-
23, 35-39, and 41-47). “[I]n § 1983 suits alleging a violation of the Due
Process Clause of the Fourteenth Amendment, . . . [p]laintiffs must (1) assert
a protected ‘liberty or property’ interest and (2) show that they were
deprived of that interest under color of state law.” Doe v. Rains Cnty. Indep.
Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995) (citations omitted). Appellant
has not identified any constitutionally protected liberty or property interest
of which he was deprived. The district court thus correctly dismissed
Appellant’s Fourteenth Amendment Due Process claims.
C. Fourteenth Amendment Equal Protection
Appellant argued in his Sixth Amended Complaint that his
Fourteenth Amendment Equal Protection rights were violated because he
was “treated unfavorably due to his non-religiosity” (Counts 22-23, 35, and
40-47). He alleges the following facts in support of his Equal Protection
claims: (1) Appellant was required to sit by his desk in the lab; (2) Hester
“further intimidated [Appellant]. . . . due to her inaction” and “failed to
protect [Appellant]”; and (3) Chen censored Appellant’s use of the phrase
“I think” in work-related emails.

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“To state a claim under the Equal Protection Clause, a § 1983 plaintiff
must allege that a state actor intentionally discriminated against the plaintiff
because of membership in a protected class.” Williams v. Bramer, 180 F.3d
699, 705 (5th Cir. 1999) (internal quotation marks omitted) (quoting Johnson
v. Morel, 876 F.2d 477, 479 (5th Cir. 1989)). Appellant has not pleaded facts
that allow us to draw a reasonable inference that he was discriminated against
due to his membership in a protected class. Accordingly, the district court
properly dismissed Appellant’s Fourteenth Amendment Equal Protection
claims.
D. Title VII
Appellant argues that he was not promoted due to his non-religiosity
in violation of Title VII of the Civil Rights Act of 1964 (Counts 41-43). In a
“failure to promote” claim under Title VII the plaintiff has the burden to
show that “(1) [he] was within a protected class; (2) [he] was qualified for the
position sought; (3) [h]e was not promoted; and (4) the position [he] sought
was filled by someone outside the protected class.” Blow v. City of San
Antonio, 236 F.3d 293, 296 (5th Cir. 2001). Appellant has not made this prima
facie showing. The district court thus did not err in dismissing Appellant’s
Title VII claims.
E. Hostile Work Environment
Appellant asserted hostile work environment claims (Counts 41-43)
based upon the same factual allegations underlying his Title VII and First
Amendment claims. The district court found that “[u]nder either the First
Amendment or Title VII, [Appellant]’s hostile work environment claims
fail.” We agree. As previously established, Appellant has not pleaded facts
indicating that he spoke to a matter of public concern and thus has not
asserted a plausible First Amendment claim. Second, Appellant has not made
the required showing for a Title VII hostile work environment claim. “To

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state a hostile work environment claim under Title VII, the plaintiff must
show that (1) the victim belongs to a protected group; (2) the victim was
subjected to unwelcome harassment; (3) the harassment was based on a
protected characteristic; (4) the harassment affected a term, condition, or
privilege of employment; and (5) the victim’s employer knew or should have
known of the harassment and failed to take prompt remedial action.” EEOC
v. WC&M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007). Appellant has not
pleaded facts permitting a reasonable inference that these elements are
present in this case. The district court therefore correctly dismissed
Appellant’s hostile work environment claims.
F. Texas Constitution
In his Sixth Amended Complaint, Appellant alleged various violations
of the Texas Constitution (Counts 22-23 and 35-47). Appellant does not
make any arguments for the validity of his state constitutional claims on
appeal. Appellant has thus waived these issues.
V.
Appellant last argues that the district court abused its discretion in
(1) granting UTHSCSA’s motion to stay discovery and for protective order,
(2) denying Appellant’s motion to compel mandatory initial disclosures and
for sanctions, and (3) denying Appellant’s motion to extend scheduling order
deadline. However, Appellant merely makes conclusory assertions in support
of this argument. Because Appellant has not articulated any reasoning for his
contention that the district court abused its discretion, we decline to consider
this argument. See Arredondo v. Univ. of Tex. Med. Branch, 950 F.3d 294, 298
(5th Cir. 2020).

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VI.
For the foregoing reasons, we AFFIRM the district court’s orders
granting Appellees’ motion to dismiss, granting UTHSCSA’s motion to stay
discovery and for protective order, denying Appellant’s motion to compel
mandatory initial disclosures and for sanctions, and denying Appellant’s
motion to extend scheduling order deadline.

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