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