IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31101

Summary Calendar

JOHN W. OLLER,

Plaintiff - Appellant

v.

NANCYE C. ROUSSEL, individually and in her official capacity as Head of 

the Department of Communicative Disorders, University of Louisiana at 

Lafayette; A. DAVID BARRY, individually and in his official capacity as 

Dean of the College of Liberal Arts, University of Louisiana at Lafayette;

MARTIN J. BALL, individually and in his official capacity as Professor of 

Communicative Disorders, University of Louisiana at Lafayette,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:11-CV-2207

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:*

Professor John W. Oller appeals the summary judgment in favor of 

Defendants Nancye C. Roussel, A. David Barry, and Martin J. Ball 

(collectively, “Defendants”). Oller sued Defendants for violating his First 

Amendment rights by censoring his speech and retaliating against him. We 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 7, 2015

Lyle W. Cayce

Clerk

 

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AFFIRM the district court’s judgment.

I.

In 1997, Oller joined the University of Louisiana at Lafayette (“UL”) as 

a professor in the Communication Disorders (“CODI”) department. For many 

years, Oller has been vocal about his views regarding creationism, intelligent 

design, and the relationship between vaccines and autism. Oller has written 

several books about the alleged link between autism and vaccines and 

discussed his views during his classes. Oller claims that Defendants became 

hostile to his work and engaged in several actions meant to remove him from 

the department and prevent him from spreading his views to students.

In December 2011, Oller sued Defendants for violating his First 

Amendment rights and his employment contract. He subsequently amended 

his complaint to add state law defamation claims. Both parties moved for 

summary judgment. The district court granted summary judgment in favor of 

Defendants with respect to Oller’s First Amendment claims and declined to 

exercise supplemental jurisdiction over Oller’s remaining state claims, 

dismissing them without prejudice. Oller timely appealed.

II.

We review a grant of summary judgment de novo. Mesa v. Prejean, 543 

F.3d 264, 269 (5th Cir. 2008). Summary judgment is appropriate when “there 

is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” FED. R. CIV. P. 56(a). We may affirm the district 

court’s grant of summary judgment on any ground supported by the record and 

presented to the district court. Hernandez v. Velasquez, 522 F.3d 556, 560 (5th 

Cir. 2008).

To survive summary judgment on his First Amendment retaliation 

claim, Oller must present evidence showing, inter alia, that he suffered an 

adverse employment action. Burnside v. Kaelin, 773 F.3d 624, 626 (5th Cir. 

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2014). “‘Adverse employment actions are discharges, demotions, refusals to 

hire, refusals to promote, and reprimands.’” Breaux v. City of Garland, 205 

F.3d 150, 157 (5th Cir. 2000) (quoting Pierce v. Tex. Dep’t of Criminal Justice, 

37 F.3d 1146, 1149 (5th Cir. 1994)). Though some other actions, such as 

transfers, may be adverse employment actions when they are “sufficiently 

punitive,” “‘some things are not actionable even though they have the effect of 

chilling the exercise of free speech.’” Breaux, 205 F.3d at 157 (quoting 

Benningfield v. City of Hous., 157 F.3d 369, 376 (5th Cir. 1998)). 

We have been particularly reluctant to interfere with decisionmaking in 

the academic context. Many of the decisions made at schools and 

universities—such as decisions “concerning teaching assignments, pay 

increases, administrative matters, and departmental procedures”—are not the 

kinds of adverse actions that “rise to the level of a constitutional deprivation” 

under our jurisprudence. Dorsett v. Bd. of Trs. for State Colls. & Univs., 940 

F.2d 121, 123 (5th Cir. 1991). “Of all fields that the federal courts should 

hesitate to invade and take over, education and faculty appointments at the 

university level are probably the least suited for federal court supervision.” Id.

at 124 (citation, quotation marks, and alterations omitted).

Oller makes five allegations to support his claim: (1) Defendants refused 

to allow Oller to use his textbook as primary source material in classes he 

teaches; (2) Defendants did not assign him to teach classes in the CODI 

department; (3) Defendants gave the Hawthorne Professorship, an endowment 

available to professors at UL, to another professor; (4) Defendants reclassified

Oller from a Track IV professor to a Track III professor; and (5) Defendants 

have not awarded him a merit pay raise since 2004.

We conclude that the first four alleged actions are not adverse 

employment actions. As to the last, Oller failed to raise a material issue of fact 

supported by competent summary judgment evidence. 

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First, declining to use Oller’s textbook as primary material in a class is 

not an adverse employment action. Oller requested that a textbook he 

authored replace the current primary text for his section of a course taught in 

multiple sections. The curriculum committee denied his request, noting that 

courses offered with multiple sections should use the same course text. The 

selection of a single textbook for a class with multiple sections taught by 

different professors is a departmental procedure and not a “constitutional 

deprivation.” See Dorsett, 940 F.2d at 123; see also Kirkland v. Northside Ind. 

Sch. Dist., 890 F.2d 794, 802 (5th Cir. 1989) (“We hold only that public school 

teachers are not free, under the first amendment, to arrogate control of 

curricula.”). Additionally, the department allowed Oller to use his textbook as 

secondary material and to discuss his views during class. Thus, not only did 

the refusal to use Oller’s textbook as primary material not rise to the level of a 

constitutional deprivation, but also it did not have the effect of chilling his 

speech. See Dorsett, 940 F.2d at 123; Pierce, 37 F.3d at 1150.

Second, the failure to assign Oller to teach particular CODI classes is 

also not an adverse employment action. In Dorsett, we noted that “decisions 

concerning teaching assignments,” though significant to the faculty member, 

“do not rise to the level of a constitutional deprivation.” 940 F.2d at 123. “[A] 

federal court is simply not the appropriate forum . . . to seek redress for such 

harms.” Id. That Oller might find his teaching assignments undesirable or 

might prefer other assignments is not material to this determination. 

Southard v. Tex. Bd. of Criminal Justice, 114 F.3d 539, 555 (5th Cir. 1997)

(“Undesirable work assignments are not adverse employment actions.”). Oller 

has not presented evidence that shows that his assignment to teach lower-level 

or nondepartmental classes fundamentally changed the nature of his job with 

UL, nor has he presented evidence that Defendants prohibited him from 

speaking on certain topics during his assigned classes. Cf. Thompson v. City 

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of Waco, 764 F.3d 500, 505 (5th Cir. 2014) (in a Title VII case, holding that a 

detective suffered an adverse employment action where a police department

“rewrote and restricted his job description to such an extent that he no longer 

occupie[d] the position of a detective”). Accordingly, Oller fails to raise a 

factual dispute as to whether his teaching assignment constitutes an adverse 

employment action.

Third, UL’s decision not to renew Oller’s Hawthorne Professorship also 

does not support his retaliation claim. UL has four Hawthorne Professorships. 

Each confers an endowment to a professor for a three-year period. At the end 

of three years, the current holder of the Professorship must reapply for it, and 

other candidates may compete. Oller held one of the Professorships from 2004 

to 2013. When Oller reapplied for the Professorship in 2013, the department 

awarded the professorship to Defendant Ball.1 Though Oller frames the loss 

of the Professorship as a loss of compensation, the evidence does not support 

Oller’s contention that he was entitled to the Professorship. He did not first 

receive the Professorship until several years after he began teaching at UL, 

and he had to reapply for it every three years. Cf. Markwell v. Culwell, 515 

F.2d 1258, 1259 (5th Cir. 1975) (“The appellant’s ‘property’ interest in his job 

was limited by the year-to-year contract and his probationary status.”). 

Rather, the Professorship appears to be a discretionary, merit-based award 

based in part on UL officials’ assessment of the quality of a professor’s work 

and his value to the department. Courts are not the appropriate forum for 

evaluating education and faculty appointments. Dorsett, 940 F.2d at 124. 

Accordingly, we find that the decision not to renew Oller’s Hawthorne 

Professorship is not an adverse employment action.

1 Defendants dispute that they were involved in the selection process. As we conclude 

that the decision not to renew the professorship is not an adverse employment action, this 

factual dispute is not material.

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Turning to the fourth alleged action, Oller fails to present evidence 

supporting his claim that his reclassification from Track IV to Track III is an 

adverse employment action. A transfer to a less desirable position can 

sometimes constitute a demotion—and therefore an adverse employment 

action—even without a decrease in pay. See Click v. Copeland, 970 F.2d 106, 

110 (5th Cir. 1992). However, Oller does not bring forth evidence showing how 

the “Track” designation affects his pay, benefits, or other privileges of 

employment. In fact, Oller remained a tenured professor at UL after the 

reclassification. 

Finally, Oller failed to raise a material fact issue regarding his complaint 

that Defendants gave him lower merit evaluations for many years resulting in 

the denial of merit pay raises. Defendants have presented evidence that no one 

at UL has received a merit pay raise since 2008, a claim Oller has not rebutted. 

Thus, this assertion does not support a reversal of the summary judgment. 

To the extent Oller’s First Amendment claims arise from a “prior 

restraint” on his speech, we find that he fails to show evidence that Defendants 

have prohibited him from stating his beliefs or censored his speech. To the 

contrary, the summary judgment evidence shows that Defendants have 

allowed Oller to use his textbook as secondary material, discuss his views 

during class, and publish and speak about his views outside the classroom.

AFFIRMED.

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