Wallace v. Texas Tech Univ.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-10454
Summary Calendar
___________________

PHILLIP A. WALLACE,
Plaintiff-Appellant,

versus

TEXAS TECH UNIV; JAMES DICKEY,
in his individual and official
capacity,
Defendants-Appellees.

________________________________________________

Appeal from the United States District Court for the
Northern District of Texas
________________________________________________
April 5, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Phillip Wallace (Wallace) appeals the

summary judgment dismissal of his employment discrimination and 42

U.S.C. §§ 1981 and 1983 suit and the denial of his motion for new

trial.

Facts and Proceedings Below

Defendant-appellee James Dickey (Dickey), the head coach of

the men’s basketball team at defendant-appellee Texas Tech

University (Texas Tech), hired Wallace as an assistant coach for

the team in a one-year contract beginning in August 1991. Wallace,
an African-American, had no coaching experience prior to his work

at Texas Tech, but he had played on the Texas Tech basketball team

during his college years. Dickey also hired Doc Sadler (Sadler) as

an assistant coach for the same period. Sadler, a white male, had

seven years of college coaching experience at the time Dickey hired

him. Sadler was paid $57.83 per month more than Wallace.

It is undisputed that Dickey admonished Wallace not to become

“too close” to the players on the basketball team and that Wallace

continued to encourage close, personal relationships between

himself and various team players. While an assistant coach,

Wallace advised certain team players that they were eligible for

financial assistance during their fifth year at Texas Tech. When

Wallace’s contract expired, Dickey did not renew it. Wallace was

replaced by Greg Pickney, an African-American.

Wallace filed a complaint with the EEOC in December 1993. On

May 31, 1994, Wallace filed this suit against Texas Tech and

Dickey, alleging that they discriminated against him on the basis

of his race and in retaliation for the exercise of his First

Amendment rights of speech (for advising African-American players

of their eligibility for financial assistance) and association (for

having close, personal relationships with the players) in violation

of Sections 1981 and 1983 and Title VII. Defendants-appellees

denied the allegations and filed a motion to transfer venue. The

district court granted the motion for transfer of venue in July

1994. Defendants-appellees later filed a motion for summary

judgment on March 15, 1995. The district court granted the motion

2
and entered judgment dismissing Wallace’s complaint on April 21,

1995, holding that (1) Dickey, in his individual capacity, is

entitled to qualified immunity on the section 1981 claims; (2)

Dickey, in his official capacity, and Texas Tech are entitled to

immunity under the Eleventh Amendment; and (3) defendants-appellees

are entitled to judgment as a matter of law in their favor on the

merits. The order and judgment were both filed and entered on the

docket on April 24, 1995. Wallace filed a response to the summary

judgment motion the next day,1 and he filed a motion for new trial

on May 1, 1995. The district court denied the motion for new trial

the same day it was filed. Wallace filed an identical motion for

new trial on May 4, 1995, which the district court denied on May 5,

1995. Wallace filed a timely notice of appeal.

Discussion

I. Summary Judgment

The standard of review of the dismissal of a case on summary

judgment is de novo. Neff v. American Dairy Queen Corp., 58 F.3d

1063, 1065 (5th Cir. 1995), cert. denied, 116 S.Ct. 704 (1996).

The moving party “bears the initial responsibility of informing the

1
Plaintiff’s Response to Defendants’ Motion for Summary
Judgment and Supporting Brief was filed April 25, 1995. The
response itself is not dated. There is a copy of an envelope from
Wallace’s attorney’s office to the district court clerk’s office
attached to the response. The envelope bears a postal date stamp
of April 12, 1995; the envelope is also marked “refused” (by whom
is not indicated) on April 14, apparently because there was postage
due of twenty-three cents. Wallace does not refer to this
envelope, and he never argues that his response was filed by
mailing it. Even had the response been timely filed, it would not
have affected the district court’s determination because the
response relies on Wallace’s pleadings, neither providing any
evidence nor pointing to any evidence in the record.

3
district court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavit, if any,’ which it believes demonstrates the absence of

a genuine issue of material fact.” Celotex Corp. v. Catrett, 106

S.Ct. 2548, 2553 (1986) (quoting Fed. Rule Civ. P. 56(c)). The

moving party “need not negate the elements of the nonmovant’s

case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994) (en banc) (emphasis in original).

Once a summary judgment motion is made and properly supported,

the nonmovant must go beyond the pleadings and designate specific

facts in the record showing that there is a genuine issue for

trial. Id. Neither “conclusory allegations” nor “unsubstantiated

assertions” will satisfy the nonmovant’s burden. Id. (citations

omitted). Wallace appears to rely on certain facts in his brief

that were not before the district court when it ruled on the

defendants-appellees’ summary judgment motion; he also relies, in

part, on his pleadings. “Our inquiry, however, is limited to the

summary judgment record . . . .” Id. at 1071, n.1. Moreover,

pleadings are not summary judgment evidence. Id. at 1075.

Accordingly, we consider only the evidence that was in front of the

district court in our analysis of Wallace’s claims that summary

judgment was improper.2

2
Wallace does not argue that it was improper for the district
court to rule on the summary judgment motion prior to receiving his
response. It was proper under Local Rule 5.1(e) of the United
States District Court for the Northern District of Texas, which
requires any response to a motion for summary judgment to be filed

4
 On appeal, Wallace argues that the district court erred in

granting the summary judgment motion on the merits, as well as by

granting qualified immunity and Eleventh Amendment immunity for

prospective injunctive relief. Because we hold that Wallace failed

to raise a genuine issue of material fact on his claims on the

merits, we affirm summary judgment without reaching the issue of

qualified immunity. See Quives v. Campbell, 934 F.2d 668, 669 (5th

Cir. 1991). And because Wallace lacks standing to request the only

prospective injunctive relief that he seeks, his complaint about

the grant of Eleventh Amendment immunity to Dickey fails.3

A. Race Discrimination Claims

To succeed on a claim of intentional discrimination under

within twenty days.
3
Suits against state officials in their official capacity are
considered to be suits against the individual’s office, and so are
generally barred as suits against the state itself. Will v.
Michigan Dept. of State Police, 109 S.Ct. 2304, 2312 (1989). But
claims for prospective injunctive relief brought against state
officials in their official capacity are not suits against the
state. Id. at 2312, n.10. Wallace argues that the district court
erred by improperly barring his claim for prospective injunctive
relief against Dickey. But the only prospective injunctive relief
that Wallace requested against Dickey was a permanent injunction
prohibiting him from pursuing unconstitutional policies in the
future. Jurisdiction over a plaintiff’s claims for future relief
is appropriate only if a reasonable likelihood exists that the
plaintiff will again be subjected to the allegedly unconstitutional
actions. Honig v. Doe, 108 S.Ct. 592, 601 (1988); Marden v.
International Ass’n of Machinists and Aerospace Workers, 576 F.2d
576, 582 (5th Cir. 1978). Because Wallace did not seek
reinstatement, there is not a reasonable likelihood that he would
again be subjected to the allegedly unconstitutional actions.
Thus, this issue is moot. See Marden, 576 F.2d at 582. Texas
Tech, as a state institution, clearly enjoys Eleventh Amendment
immunity. See Laxey v. Louisiana Board of Trustees, 22 F.3d 621,
623 (5th Cir. 1994); Henry v. Texas Tech University, 466 F.Supp.
141, 144-146 (N.D. Tex. 1979).

5
Title VII, Section 1983, or Section 1981, a plaintiff must first

prove a prima facie case of discrimination. See, e.g., Meinecke v.

H & R Block of Houston, 66 F.3d 77, 83 (5th Cir. 1995) (Title VII);

Larry v. White, 929 F.2d 206, 209 (5th Cir. 1991) (plaintiff must

prove racially discriminatory purpose of act to demonstrate Section

1981 or Section 1983 violation), cert. denied, 113 S.Ct. 1946

(1993); Briggs v. Anderson, 796 F.2d 1009, 1019-21 (8th Cir. 1986)

(inquiry into intentional discrimination is essentially the same

for individual actions brought under sections 1981 and 1983, and

Title VII). Generally, a plaintiff proves a prima facie case

through a four-element test that allows an inference of

discrimination. Meinecke, 66 F.3d at 83. But a prima facie case

can also be proven by direct evidence of discriminatory motive.

See Kendall v. Block, 821 F.2d 1142, 1145 (5th Cir. 1987).

Wallace’s brief identifies four race-based claims: (1) intentional

discrimination in refusing to renew his contract, (2)

discriminatory disparate treatment in paying him less than Sadler,

(3) discriminatory disparate treatment in disciplining him, and (4)

hostile work environment.

1. Refusal to Renew Wallace’s Contract

Dickey’s affidavit states that he encountered problems with

Wallace soon after Wallace was hired because Wallace (1) was

unwilling to follow his instructions, and (2) repeatedly questioned

Dickey’s coaching judgment.4 Dickey’s affidavit also stated that

4
Dickey’s affidavit alleges specific instances of Wallace’s
refusals to follow directions and his questioning of Dickey’s
judgment. Wallace attacks Dickey’s affidavit as being improperly

6
he elected not to renew Wallace’s contract because Wallace’s job

performance was unacceptable, and Dickey’s affidavit further

specifically denied that race played any role in his decision.

Wallace argues that he presented direct evidence of discriminatory

motive: Dickey’s use of racial slurs.5 Wallace misconstrues our

standard of review. There was no record evidence to support this

bare allegation of racial slurs when the district court granted

defendants-appellees’ summary judgment motion.6 We do not assume

that Wallace could have supported this contention. Little, 37 F.3d

at 1075 (“We resolve factual controversies [for purposes of summary

judgment] in favor of the nonmoving party, but only when there is

an actual controversy, that is, when both parties have submitted

evidence of contradictory facts. We do not, however, in the

absence of any proof, assume that the nonmoving party could or

based on hearsay. Although some of Dickey’s specific examples may
not be based on his personal knowledge of the events, Dickey does
not offer those incidents for the truth of the events, but rather,
he offers his belief that these incidents occurred as proof of his
motive for failing to renew Wallace’s contract. Accordingly, those
statements are not hearsay. See Fed. R. Evid. 801(c).
5
Wallace recognizes that he cannot rely on the test set forth
in McDonnell Douglass Corp. v. Green, 93 S.Ct. 1817 (1973), which
permits an inference of discrimination, for the failure to renew
his contract claim because he was replaced by an African-American.
6
Plaintiff’s Objections and Responses to Defendants’ First Set
of Interrogatories, which was attached to defendants-appellees’
motion for summary judgment, does contain the following statement:
“African-American players were referred to and addressed with
hostile and profane language whereas white players did not receive
such treatment.” This vague and conclusory statement——which
includes no reference to racial remarks——fails to “designate
specific facts”——such as what was said, to whom it was said, or
even who made the comments——sufficient to avoid summary judgment.
See Little, 37 F.3d at 1075.

7
would prove the necessary facts.”) (emphasis in original).

Consequently, the uncontroverted record evidence not only shows an

absence of material facts, it negates an element of Wallace’s cause

of action. See e.g., McDaniel v. Temple Indep. Sch. Dist., 770

F.2d 1340, 1345-46 (5th Cir. 1985) (describing plaintiff’s burden

of proving discriminatory intent in failure to renew contract

case). The district court did not err in granting summary judgment

against Wallace on this claim.

2. Disparate Pay

The record evidence on this issue was Dickey’s affidavit

testimony that Sadler was paid $57.83 per month more than Wallace

because of Sadler’s significantly greater college coaching

experience. Sadler had seven years of college level coaching

experience while Wallace had none. Dickey’s affidavit also

specifically denied that race was a factor in setting Wallace’s

salary. This uncontroverted evidence is sufficient to establish

that there is an absence of a material fact on the issue of

discriminatory motive because Wallace fails to provide any evidence

that this explanation is pretextual.7 See Pouncy v. Prudential

Ins. Co. of America, 668 F.2d 795, 803 (5th Cir. 1982) (listing

differing levels of experience as a nondiscriminatory rationale for

unequal salaries for employees performing the same job); Pittman v.

7
Plaintiff’s Objections and Responses to Defendants’ First Set
of Interrogatories included an allegation that Dickey represented
to Wallace that he “would be paid at the same level” as Sadler.
This does not constitute evidence of pretext; pretextual evidence
would show that the proffered nondiscriminatory reason was not the
cause of the wage differential. See Rhodes v. Guiberson Oil Tools,
No. 92-3770, slip op. at 1808 (5th Cir. 1996)(en banc).

8
Hattiesburg Mun. Separate Sch. Dist., 644 F.2d 1071, 1074 (5th Cir.

1981) (once defendant articulates nondiscriminatory reason for

disparate pay, then plaintiff must show that articulated reason is

pretext). The district court did not err in granting summary

judgment against Wallace on his disparate pay claim.

3. Disparate Discipline

Wallace appears to complain of two types of discipline.

First, he complains that Dickey cursed at him in front of players,

while he never cursed at Sadler in front of players. Second, he

complains that he was reprimanded for conduct for which Sadler was

not reprimanded. Although he fails to adequately explain the

second allegation of disparate discipline on appeal, it appears

from his initial pleading to be another way of expressing his

complaint that he was instructed not to become “too close” to the

players and was reprimanded for his failure to follow these

instructions. His pleading alleged that Sadler was not similarly

instructed.

The only record evidence in front of the district court showed

that Dickey did not curse at Wallace in front of the players or

other coaches.8 Wallace also fails to point to any specific

8
Wallace’s answer to an interrogatory——that Dickey treated him
in a “very demeaning manner” and used “hostile and profane”
language——was too vague to establish a genuine issue of fact.
Dickey’s affidavit states that he never cursed at Wallace in front
of players or coaches. Wallace argues that Dickey’s failure to
swear that he never cursed at him, even in private, prevents
Wallace from establishing that there is an absence of a genuine
issue of material fact. This ignores Wallace’s own complaint,
which alleges only that Dickey cursed at Wallace in front of
players. Additionally, there was no record evidence that Dickey
ever cursed at Wallace. Dickey was not required to negate any

9
summary judgment evidence that Sadler was given different

instructions regarding personal relationships with the players or

that Sadler was disciplined differently for conduct similar to

Wallace’s actions. See, e.g., Green v. Armstrong Rubber Co., 612

F.2d 967, 968 (5th Cir. 1980) (employer did not unlawfully

discriminate against African-American employee who was fired for

his part in a fight when white employee was merely suspended

because African-American employee resorted to physical violence

with a dangerous instrument while white employee only participated

verbally), cert. denied, 101 S.Ct. (1980). Accordingly, there is

no evidence that Dickey disciplined Wallace differently because of

his race. The district court did not err in granting summary

judgment against Wallace on his disparate discipline claim.

4. Hostile Work Environment

Wallace alleges that Dickey “routinely [made] racist remarks.”

We assume, arguendo, that if there were specific evidence of this

in the record, such facts may have prevented summary judgment from

being rendered against Wallace on this claim.9 But there was no

element of Wallace’s cause of action; he merely was required to
demonstrate an absence of evidence. Little, 37 F.3d at 1075. He
met his burden.
9
Discriminatory verbal intimidation, ridicule, and insults may
be sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment that
violates Title VII. See DeAngelis v. El Paso Mun. Police Officers
Ass’n, 51 F.3d 591, 593 (5th Cir. 1995) (citations omitted), cert.
denied, 116 S.Ct. 473 (1995). To prove a hostile environment
claim, Wallace must have shown that the discriminatory conduct was
severe or pervasive enough to create an objectively hostile or
abusive work environment. Harris v. Forklift Sys., Inc., 114 S.Ct.
367, 370 (1993).

10
specific evidence of racist remarks by Dickey——or anyone else——in

the record. Dickey’s affidavit states that he did not make racial

remarks at practice, in games, coaches’ meetings, or at any other

time. Both Will Flemons (Flemons), a member of the Texas Tech

basketball team during the year in which Wallace was an assistant

coach, and Robert Brashear (Brashear), a part-time assistant

basketball coach at Texas Tech during that year, also stated in

affidavits that they never heard Dickey make racial remarks or

demean anyone because of his or her race. This evidence is

sufficient to demonstrate the absence of a genuine issue of

material fact. The district court did not err in granting summary

judgment against Wallace on this claim.

B. First Amendment Claim

Wallace alleged that Dickey and Texas Tech unlawfully

retaliated against him by failing to renew his contract because he

exercised protected free speech and association rights. The

alleged speech that Wallace argues is protected occurred when he

advised African-American players about their right to receive

financial assistance and “how to handle” “discrimination by Dickey

regarding the players’ eligibility to receive” the financial

assistance. Although Wallace’s initial pleading was vague in its

assertion of a violation of his First Amendment right to freedom of

association, we understand this complaint to be that he has a right

to develop close, personal relationships with the players. We hold

that the district court did not err in granting summary judgment

against him on these claims because he failed to show that the

11
activities he engaged in are protected.

1. Free Speech

While a public employee may not be discharged for exercising

his or her right to free speech under the First Amendment, it is

clear that only certain public employee speech is thus protected.

Thompson v. City of Starkville, 901 F.2d 456, 460 (5th Cir. 1990).

This Court has established a three-part test to determine whether

particular speech by a public employee is protected from public

employer retaliation. Id. First, the speech must have involved a

matter of public concern. Id. Second, the public employee’s

interest in commenting on matters of public concern must outweigh

the public employer’s interest in promoting efficiency. Id. The

third prong of the test is based on causation: the employee’s

speech must have motivated the decision to discharge the employee.

Id. We need not go beyond the first prong of this test because

Wallace failed to meet his summary judgment burden of producing

evidence that the speech for which he alleges that he was

retaliated against was speech involving a matter of public concern.

See Page v. DeLaune, 837 F.2d 233, 238 (5th Cir. 1988) (plaintiff

fails to meet burden of creating genuine issue of material fact on

element of public concern to avoid summary judgment); Noyola v.

Texas Dep’t of Human Resources, 846 F.2d 1021, 1023-24 (5th Cir.

1988) (vague affidavit insufficient for plaintiff-employee to meet

burden of establishing that speech is matter of public concern on

summary judgment); id. at n.2 (allegations in complaint may not be

relied upon as evidence to avoid summary judgment).

12
 The content, form, and context of the speech determines

whether it is of public concern. Thompson, 901 F.2d at 461. “The

courts will not interfere with personnel decisions ‘when a public

employee speaks not as a citizen upon matters of public concern,

but instead as an employee upon matters only of personal

interest.’” Page, 837 F.2d at 237 (quoting Connick v. Meyers, 103

S.Ct. 1684, 1690 (1983)). In determining whether speech is of

public concern, we must determine if Wallace’s speech was

“primarily in [his] role as citizen or primarily in his role as

employee.” Terrell v. University of Texas Sys. Police, 792 F.2d

1360, 1362 (5th Cir. 1986), cert. denied, 107 S.Ct. 948 (1987).

Wallace admits that he was speaking primarily in his role as

employee, but he argues that he was speaking on a matter of public

concern because he was not speaking of his own personal dispute or

grievance. He misinterprets the law.

We have recognized that public employees may speak in their

role as employees yet still speak on matters of public concern in

limited instances. Wilson v. UT Health Center, 973 F.2d 1263,

1269-70 (5th Cir. 1992) (speech of public employee as employee and

as citizen is of public concern), cert. denied, 113 S.Ct. 1644

(1993); see Schultea v. Wood, 27 F.3d 1112, 1120 (5th Cir. 1994)

(police chief reporting suspected criminal activity by a city

council member to the proper state agency was speech on public

concern even though he spoke as employee), superseded on other

grounds, 47 F.3d 1427 (1995) (en banc). But we have held that

speech made in the role as employee is of public concern only in

13
limited cases: those involving the report of corruption or

wrongdoing to higher authorities. See Wilson, 973 F.2d at 1266

(reporting sexual harassment to superiors); cf. Brown v. Texas A &

M Univ., 804 F.2d 327, 329-30, 336-38 (5th Cir. 1986) (explaining

that the First Amendment protects “whistle blowing” by a public

employee). There is no evidence (or even an allegation) that

Wallace was a whistle blower or attempted to report any wrongdoing

to the public or to higher authorities. Thus, Wallace failed to

allege facts, much less present evidence, sufficient to constitute

speech on a matter of public concern. Accordingly, the district

court did not err in granting summary judgment against him on his

free speech claim.10

2. Freedom of Association

The summary judgment evidence included Dickey’s admissions

10
In addition, Dickey’s affidavit——stating that he refused to
renew Wallace’s contract because of a difference in coaching
philosophies and Dickey’s perception that Wallace lacked loyalty
and refused to follow directions——points to an absence of a genuine
issue of fact on the issue of causation. There is no evidence that
Wallace’s speech was causally related to the non-renewal of his
contract. In fact, Dickey, Flemons, and Brashear all stated in
their affidavits that Dickey was attempting to obtain financial
assistance for his fifth-year players prior to Wallace’s
involvement in the matter.
Alternatively, even if there were evidence sufficient to
establish genuine issues of fact that Wallace’s speech was
protected by the First Amendment and on causation, Dickey would
still be entitled to qualified immunity on this claim because a
right to engage in such speech was not clearly established at the
time of the alleged violation. See Noyola, 846 F.2d at 1024-26
(holding officials entitled to qualified immunity because protected
status of speech and unlawfulness of terminating plaintiff not
facially apparent at time). As previously observed, Wallace had no
standing to seek any of the injunctive relief requested in his
pleadings (see note 3, supra), and Texas Tech enjoyed Eleventh
Amendment immunity.

14
that (1) he instructed all of the coaches, including Wallace, not

to become too close to the players because his coaching philosophy

is that coaches need to maintain a professional distance to remain

objective, and (2) Wallace’s failure to follow these instructions

was one cause of the refusal to renew his contract. Nevertheless,

we hold that summary judgment was proper because Wallace produced

no evidence that his association with the players was one entitled

to constitutional protection.

The Supreme Court has recognized that the First Amendment

protects a right of association in two lines of cases. See City of

Dallas v. Stanglin, 109 S.Ct. 1591, 1594 (1989). First, the choice

to enter into and maintain certain intimate human relationships is

protected as an element of personal liberty. Id. (citing Roberts

v. United States Jaycees, 104 S.Ct. 3244 (1984)). Second, the

Court has recognized a right to associate for the purpose of

engaging in expressive activities protected by the First Amendment.

See id. Wallace’s freedom of association claim is based on the

second line of cases, asserting that he has a right to become close

with the players and enter “private relationships” with them.

The Constitution does not include a “generalized right of

‘social association.’” City of Dallas, 109 S.Ct. 1595. See also

Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th Cir. 1995)

(relationships of bar owner with patrons and employees not type of

intimate relationship protected by First Amendment). The specific

types of intimate associations which have found protection in the

First Amendment have been more intimate than our image of typical

15
coach-player relationships. See Board of Directors of Rotary Int’l

v. Rotary Club of Duarte, 107 S.Ct. 1940, 1945-46 (1987) (listing

cases affording constitutional protection to marriage, begetting

and bearing children, child rearing and education, and living with

relatives) (citations omitted).

Although First Amendment protection of social association is

not limited to family relationships, it is, at least in many

contexts, limited to relationships “that presuppose ‘deep

attachments and commitments to the necessarily few other

individuals with whom one shares not only a special community of

thoughts, experiences, and beliefs but also distinctively personal

aspects of one’s life.’” Board of Directors of Rotary Int’l, 107

S.Ct. at 1946 (citation omitted). We have held that associations

in some private clubs, for example, are protected. See Louisiana

Debating and Literary Assoc. v. City of New Orleans, 42 F.3d 1483,

1497-98 (5th Cir. 1995), cert. denied, 115 S.Ct. 2583 (1995).

Dickey’s motion for summary judgment specified the absence of

a material fact——evidence of any kind of intimacy——, and Wallace

failed to provide any evidence in response. See Noyola, 846 F.2d

at 1024 n.2; cf. Louisiana Debating and Literary Assoc., 42 F.3d at

1494 (discussing factors to consider in determining whether private

clubs are protected). Further, even if Wallace could have

established an abstract First Amendment right of association for

some coach-player relationships, the limitations Dickey placed on

such a right would be supported by Texas Tech’s interest in

promoting the efficient coaching of its basketball team. See

16
Coughlin v. Lee, 946 F.2d 1152, 1157 (5th Cir. 1991) (applying

Pickering balancing test to free speech claim).11 The district

court did not err in granting summary judgment in favor of

defendants-appellees on this claim.

II. Motion for New Trial

After summary judgment had been entered against him, Wallace

filed a motion for new trial pursuant to Federal Rule of Civil

Procedure 59. A denial of a motion for new trial will be

overturned only for an abuse of discretion. Hoyt R. Matise Co. v.

Zurn, 754 F.2d 560, 568 n.14 (5th Cir. 1985) (citing Chemical

Delinting Co. v. Jackson, 193 F.2d 123 (5th Cir. 1951)). Wallace

argues that the district court abused its discretion by refusing to

grant a new trial because the summary judgment was against the

weight of the evidence.

The arguments in Wallace’s motion for new trial appear12 to be

based on the evidence he submitted with the motion: his affidavit,

the affidavit of a former Texas Tech player, and several letters

11
In addition, Dickey would be entitled to qualified immunity
because a right to coach-player association as claimed by Wallace
was not clearly established at the time of Dickey’s instructions.
See Vieira v. Presley, 988 F.2d 850, 853 (8th Cir. 1993) (declining
to reach issue of whether associations with “friends and
acquaintances” are protected by First Amendment because such
protection not clearly established); Noyola, 846 F.2d at 1025-26
(discussing qualified immunity). As previously noted (see notes 3
and 10, supra), Wallace had no standing to procure any of the
injunctive relief sought in his pleadings, and Texas Tech had
Eleventh Amendment immunity.
12
If Wallace’s argument is, instead, that the district court
abused its discretion in failing to grant his motion for new trial
because the summary judgment evidence was sufficient to establish
a genuine issue for trial, we reject this argument for the reasons
set forth in Section I. supra.

17
from former Texas Tech players. A party is not entitled to have a

summary judgment set aside on the basis of evidence not produced

prior to summary judgment unless he demonstrates a valid excuse for

the failure to produce the evidence prior to the court’s summary

judgment ruling. See Waltman v. Int’l Paper Co., 875 F.2d 468,

473-74 (5th Cir. 1989). The district court properly refused to

review the new evidence because Wallace failed to allege or show

any reason for failing to provide the evidence prior to summary

judgment. See, e.g., id. The district court did not abuse its

discretion by denying Wallace’s motion for new trial.

Conclusion

For the foregoing reasons, the district court’s judgment is

AFFIRMED.

18