UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

TIMOTHY J. O’BRIEN ) Plaintiff )

)v. ) Civil Action No. H-08-2337

)UNIVERSITY OF HOUSTON, )JOHN RUDLEY, individually and )

in his official capacity ) Defendants ) JURY TRIAL DEMANDED

ORIGINAL COMPLAINT

TO THE HONORABLE JUDGE OF SAID COURT:

Timothy J. O’Brien, Plaintiff, files this original complaint against the University of Houston, (hereafter “University”) and John Rudley (hereafter “Rudley”) and would show the Court as follows:

PARTIES AND SERVICE

1. Plaintiff is an individual who resides in Harris County, Texas.

2. The University is a state agency with its main campus located in Houston, Harris County, Texas and may be served through its president, Dr. Renu Khator, by delivering a copy of this complaint and a summons to Office of the President, University of Houston, 212 E. Cullen Building, Houston, Texas 77024-2018.

3. Defendant John Rudley is a Texas resident and the president of Texas Southern University located in Houston, Harris County, Texas and may be served by delivering a copy of this complaint and a summons to the Office of the President, Texas Southern University, 3100 Cleburne Street Houston, TX 77004.

JURISDICTION

4. Jurisdiction is proper in this Court because this action arises under Title 42 of the U.S.C., Section 2000e et seq., Title 42 of the U.S.C. Section 1981 and Section 1983.

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FACTS

5. Plaintiff is a Ph.D student in the History Department at the University of Houston.

6. Plaintiff entered the graduate program in the economics department at the University in the fall of 2003.

7. Shortly thereafter plaintiff changed his major to history.

8. History department chairman Dr. Joseph Pratt began teaching plaintiff several independent studies business history classes in the fall of 2003 so that plaintiff could meet prerequisite requirements for the graduate program in history.

9. From late fall 2003 through spring 2004 plaintiff met with Pratt in the chairman’s office to take instruction.

10. The plaintiff applied to the masters program in the history department at the University in January, 2004.

11. The plaintiff also applied for a teaching assistant ship for the 2004-2005 school year.

12. On January 15, 2004 Pratt submitted a letter of recommendation to the history department on behalf of the plaintiff.

13. For his recommendation Pratt used a recommendation form provided by the department.

14. The recommendation form provided a place for the plaintiff to waive his right to review the application. The application form also provided a space for the student to sign and date the waiver or non-waiver to review the recommendation.

15. The recommendation form Pratt submitted showed a check mark next to the sentence “I waive my right to review this recommendation.” The plaintiff did not make the check mark.

16. The recommendation form Pratt submitted did not include the plaintiff’s signature.

17. Pratt gave a good recommendation to the plaintiff for the masters program.

18. The application materials provided by the history department for teaching assistant positions for the 2004-2005 school year did not stipulate what criteria the department used to determine which graduate students received funding.

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19. The plaintiff was notified March 2, 2004 of his acceptance into the history masters degree program via letter from Daphne Pitre, the history department graduate advising assistant.

20. The history department appointed Dr. Pratt to be plaintiff’s adviser.

21. The plaintiff received notification on March 11, 2004 letter signed by history department chairman Pratt that plaintiff was deemed qualified for a graduate teaching assistantship for fall 2004.

22. Pratt’s letter said that plaintiff should contact history department graduate director Dr. Martin Melosi for more information about his chances of receiving a teaching assistantship.

23. The plaintiff received no further correspondence concerning the status of his teaching assistant application and after several inquiries finally ascertained that he would not be offered a teaching assistantship or any other funding from the department for fall of 2004.

24. The history department provided no reason for not funding the plaintiff for the 2004-2005 school year.

25. In the fall semester of 2004 the plaintiff enrolled fulltime at the University as a master’s degree student in the history department.

26. After entering the program the plaintiff discovered an unusual practice regarding the restroom facilities on the fifth floor of the Agnes Arnold building where the history department is housed.

27. During the first week of classes in the fall 2004 semester the plaintiff asked history department graduate advising assistant Daphne Pitre for a key to the bathroom and was informed that “only professors get a key to the bathrooms.”

28. In the first week of September, 2004 plaintiff discovered that the University library had lending policies that placed graduate students into two different classes. Graduate students that received funding (teaching and research assistants) were allowed to check out books for an entire semester but unfunded graduate students could only check out books for three weeks.

29. Plaintiff spoke with Linda Thompson, Associate Dean of the Libraries during the first week of September 2004. Thompson recommended that plaintiff write her a letter expressing his concerns regarding the inequitable lending policies.

30. Plaintiff hand delivered a letter the same day to Thompson.

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31. Linda Thompson sent and email to the plaintiff on September 10, 2004 stating that the library had changed their policies so that all graduate students would from September 13, 2004 forward have the same borrowing privileges.

32. On September 21, 2004 plaintiff spoke with the chairperson of the history department Dr. Susan Kellogg. Dr. Kellogg’s degree is in anthropology as opposed to history, and was originally hired as a member of the history department because of her husband, history department faculty member Dr. Steve Mintz’s demand that she be hired lest he leave the University.

33. Plaintiff asked Kellogg for a copy of the policy concerning access to the restrooms. Kellogg told plaintiff that she could not help him on getting access to the restrooms in the history department and that she had been working at the University for a long time and “that’s just the way it is.”

34. In October 6, 2004 the plaintiff sent a letter to the dean of the College of Liberal Arts and Social Sciences (CLASS) Dr. John Antel. The plaintiff asked about the lack of criteria for graduate funding decisions in the history department and also requested a copy of policy and procedures regarding the locked rest rooms.

35. On October 11, 2004 Dean Antel sent an email to the plaintiff explaining, “There were, a few years back, some serious security problems in the upper floors restrooms. The staff and faculty thus recommended locked restrooms with strict control of key access.” Antel concluded that “I am sorry, but the current key situation is a departmental policy and I am not inclined to intervene.”

36. Antel’s October 11, 2004 email reply to plaintiff did not address the lack of criteria for graduate funding decisions in the history department.

37. The plaintiff replied to Antel’s email on October 11, 2004 and again requested a copy of the policy regarding keys to the history department restrooms but Dr. Antel never replied.

38. Plaintiff filed a public information request with the University’s Office of the General Counsel, which revealed that there were no police or other reports indicating any crime or assault had ever occurred in the Agnes Arnold Hall restrooms.

39. The history department masters degree program requires proficiency in a foreign language.

40. In the fall of 2004 the history department website and the University’s written materials claimed that the language requirement could be fulfilled by taking two semesters of graduate reading classes or one semester of a graduate reading class and a 500 word translation.

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41. In the fall of 2004 the plaintiff attempted to register for a Spanish graduate class for non-majors to fulfill the language requirement. The university was not offering the class.

42. Plaintiff then inquired to the University’s Modern and Classical Languages Department chairman Marc Zimmerman about when his department would be offering the reading class that he needed.

43. Zimmerman advised plaintiff that there were no plans to offer the classes and that he should contact the history department chairman because many history graduate students made similar requests.

44. Plaintiff emailed the history department chairman Pratt about the language classes but never received a reply.

45. On December 8, 2004 the plaintiff sent a letter to the Chancellor / President of the University Dr. Jay Gogue. The letter concerned the alleged discriminatory actions by Dean Antel and history department administrators concerning access to restroom facilities.

46. The December 8, 2004 letter to Gogue also mentioned the plaintiff’s telephone conversations with Houston Independent School District (HISD) superintendent Dr. Abe Saavedra concerning an issue with the public schools in his neighborhood.

47. Dr. Gogue answered plaintiff’s complaint and referred him to the University’s EEOC office.

48. In the spring of 2005 plaintiff applied for a summer teaching assistantship.

49. The department chair Kellogg did not respond to plaintiff’s application until shortly before the summer semester started. Kellogg claimed in her email to plaintiff that his activism was not the reason he did not get a summer teaching assistantship.

50. In late summer of 2005 Dr. Pratt notified plaintiff that he would provide him funding for the 2005-2006 school year through a grant Pratt had received from the Houston Endowment.

51. On August 31, 2005 Pratt emailed plaintiff saying he had met with history department chair Susan Kellogg. Pratt claimed that plaintiff refused to “to attend a meeting called to discuss an issue that involved you without telling me your side of the story.” Pratt’s email claimed that plaintiff had put him “in an awkward position.”

52. In late November 2005 plaintiff met with his advisor, Joe Pratt at his request.

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53. In the meeting Pratt claimed that Kellogg was nervous about the questions plaintiff was asking about history department policies.

54. Pratt had requested that plaintiff meet him in his office to discuss funding plaintiff’s pending research trip to Washington, D.C. and because he wanted plaintiff to meet with and “work out” his problems with chairperson Sue Kellogg.

55. At the meeting with Pratt and Kellogg the plaintiff explained that the university’s errors in listing unavailable ways to complete the language requirement for the master’s and PhD degrees would cause the plaintiff to undergo financial duress because plaintiff would have to attend at least one more semester after completing all the other requirements for the masters degree.

56. Pratt derided plaintiff’s concerns about having to attend another semester to fulfill the language requirement and claimed that the plaintiff had attended some small university as an undergraduate that plaintiff had no right to make any statements about a program he had spent twenty years working to making better. Pratt claimed that plaintiff’s narrow and uniformed viewpoint from the bottom up could not allow him to see how difficult it was to run a graduate program and that even Harvard University mistreated its graduate students.

57. Plaintiff stated that he had graduated from the Pennsylvania State University that was larger than the University and held a first tier academic rank.

58. Pratt said that the plaintiff should cease speaking out about the deficiencies of the program or he would risk losing his funding for the rest of his time as a graduate student at the University.

59. At one point during the meeting Dr. Martin Melosi whose office is across the hall from Pratt’s came and stood in the doorway of Pratt’s office and listened in to the meeting as Pratt was berating plaintiff for about concerns.

60. Pratt finally admitted that it was good that the plaintiff screamed at professors in the department from time to time because it brought deficiencies in the program to their attention.

61. Plaintiff stated that he had at no time raised his voice to any faculty or staff in his entire time at the university and Pratt corrected and withdrew mischaracterizations about the plaintiff.

62. In the meeting plaintiff asked Kellogg why a PhD candidate from another university was teaching classes in the department when University PhD candidates needed that teaching experience.

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63. Kellogg stated that no one had answered and email she sent out about the adjunct position opening. Subsequent public information request showed that Kellogg had not sent any emails about adjunct teaching positions.

64. Kellogg also told plaintiff that everyone at the University worked to assist plaintiff in his studies. Plaintiff replied that was not his experience.

65. In January 2006, plaintiff received a letter from Dr. Thomas O’Brien, the graduate director of the history department. O’Brien’s letter claimed that plaintiff had completed the language requirement for the masters degree.

66. Plaintiff had not completed the language requirement for the master’s requirement.

67. During a spring 2006 meeting between the plaintiff and Pratt, Pratt told plaintiff that someone had called the department about plaintiff’s activism in his neighborhood of Freedmen’s Town.

68. On March 6, 2006 plaintiff faxed a letter to the African American Studies Program (A.A.S). The letter was signed by Jacqueline Beckham, Chair, Free Man’s Neighborhood Association, (FMNA) a 501(c) (3) dedicated to preserving the history, culture and heritage of African Americans particularly in the Freedmen’s Town neighborhood of Houston, TX.

69. The letter requested a meeting with Dr. James Conyers the director of the A.A.S. program regarding why Dr. Fred McGhee was hired as the visiting scholar for the 2005-2006 school year.

70. Immediately after faxing the letter assistant director of the A.A.S. program Dr. Ahati Toure telephoned plaintiff because plaintiff was the contact person in said letter.

71. Toure told plaintiff that there was nothing unusual about the selection of Dr. McGhee for the position and attempted to dissuade plaintiff from getting an appointment with Dr. Conyers.

72. On March 7, 2006 Toure sent an email to plaintiff and extended an invitation to FMNA to arrange a meeting with him and Dr. McGhee.

73. Shortly thereafter Dr. Fred McGhee went to Jacqueline Beckham’s house and threatened her and insisted that plaintiff and Lenwood Johnson, a board member of FMNA were troublemakers and that she shouldn’t listen to them.

74. Shortly thereafter Conyers refused to meet with plaintiff and FMNA board members.

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75. In the spring of 2006 the plaintiff was admitted to the history department PhD program at the University.

76. On March 31, 2006, plaintiff and Lenwood Johnson met with UH business services staffer members and Aramark (UH food service contractors) concerning plaintiff’s requests for fair trade coffee to be served at the University.

77. On April 12, 2006 plaintiff attended an oral defense of his master’s thesis.

78. The defense was held on the sixth floor of Agnes Arnold hall in the conference room of the African American Studies Program (A.A.S.).

79. Present for the defense from the history department was Dr. Gerald Horne, Dr. Guadalupe San Miguel and Pratt. Economics professor Dr. Thomas DeGregori’s attended by phone.

80. When the plaintiff’s master’s thesis committee was ready to vote on whether plaintiff passed his defense they asked him to step outside the room.

81. When plaintiff stepped into the hallway Dr. Toure and Dr. Conyers confronted him. Dr. Toure told plaintiff to leave the building immediately or he would call the police.

82. Plaintiff replied that he was a graduate student at the university and was defending his master’s thesis and would not leave.

83. Dr. Conyers then burst into the conference room where he spoke with professors Pratt, Gerald Horne and Guadalupe San Miguel about plaintiff’s presence.

84. On April 12, 2006, sent a letter to Chancellor Gogue about Conyers and Toure’s threats to him.

85. On April 17, City Councilman M.J. Khan sent a letter to Gogue on behalf of plaintiff. The letter advocated for plaintiff’s fair trade coffee campaign at the University.

86. On April 18, Bishop Daniel Dinardo of the Galveston-Houston Catholic Diocese sent a letter to Gogue on behalf of plaintiff. The letter advocated for plaintiff’s fair trade coffee campaign at the University.

87. On April 18, state representative Garnet Coleman telephoned Gogue on behalf of plaintiff. In the conversation Coleman advocated for plaintiff’s fair trade coffee campaign at the University.

88. On April 21, 2006 Dean Antel sent a letter to plaintiff regarding plaintiff’s April 13, 2006 letter to Drs. Conyers and Toure. Antel’s letter informed plaintiff that his

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grievance against Conyers and Toure should go through the College of Liberal Arts and Social Sciences (CLASS) rather than the History department.

89. On April 24, 2006 plaintiff met with UH business services staff members and Aramark. The UH staffers were concerned and angry that politicians had contacted the president Gogue on plaintiff’s behalf. University staffer Theodore Kelly was particularly angry with plaintiff and his actions concerning getting influential people to contact president Gogue.

90. In May, 2006 plaintiff met with assistant CLASS dean Sarah Fishman about his grievance against Conyers and Toure.

91. In the meeting Fishman told plaintiff that “he wrote too many letters,” and that he had better concentrate on his studies. Fishman told plaintiff that it was not his concern about whom the University hired and that he should concern himself about getting his graduate degree and in particular that plaintiff should be concerned about the future of his graduate funding at the University.

92. On May 9, 2006 Fishman sent a letter to plaintiff regarding his grievance against Conyers and Toure.

93. On May 12, 2006 plaintiff wrote to Dr. Joseph Pratt stating that because Pratt had refused to advise plaintiff on his doctoral dissertation he requesting that Pratt inform the department so that the department would appoint another advisor.

94. Pratt replied to plaintiffs letter on May 12, 2006 and refused to honor plaintiff’s request to contact the department about his refusal to advise plaintiff on his PhD program.

95. Plaintiff filed a grievance against Dr. Pratt requesting that the department appoint a dissertation advisor to plaintiff arguing that because the department admitted the plaintiff to the PhD program they must appoint him an advisor.

96. In June of 2006 Dr. Philip Howard conducted a grievance hearing with plaintiff, plaintiff’s 2 month-old daughter Yuna and Dr. Pratt in attendance.

97. The outcome of the grievance was the Howard would contact two professors who specialized in African American history to see if they would advise plaintiff on his dissertation. A few weeks later University history department faculty member Dr. Gerald Horne agreed become the plaintiff’s advisor for his dissertation.

98. In June 2006 plaintiff, Lenwood Johnson and about ten other community members representing various African American groups met with Dean Antel concerning his faculty Conyers and Toure threatening plaintiff.

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99. In the meeting Antel was dismissive about plaintiff’s fellow community members concerns about the University’s African American Studies program could not give bachelors degrees on a minor.

100. Antel also assured meeting attendees that the plaintiff’s education would not be interfered with in the future and that an “investigation” was going on into Antel and Toure’s threats to plaintiff.

101. On October 12, 2006 University student newspaper published a story about the staff council public forum held on campus. The story quoted Gogue and vice president for finance and administration John Rudley’s false statements regarding the University contractors who sold non-fair trade coffee and UH apparel that were sourced from workers who were exploited. Rudley and Gogue claimed they couldn’t negotiate the contracts until they expired.

102. The same day the plaintiff went to Rudley’s campus office to request a meeting with him.

103. Plaintiff made at least five visits over a period of several weeks before Rudley’s staffer finally set up a meeting.

104. On November 3, 2006 plaintiff sent a letter to University general counsel Dona G. Hamilton requesting that she answer his voicemail about University food service contractor Aramark personnel harassment at UH Students for Fair Trade informational tabling events on campus.

105. Shortly thereafter the plaintiff received an email claiming the general counsel’s office had done an investigation into Aramark harassing plaintiff and claimed that they could find not find any evidence of harassment.

106. Plaintiff replied with more information and never heard anything else from University employees about the incident.

107. Aramark employee’s harassment of plaintiff ceased shortly after he sent his Nov. 3, 2006 letter to attorney Hamilton.

108. On November 9, 2006, plaintiff, several students and Lenwood Johnson met with Rudley and other UH staffers in Rudley’s office.

109. Rudley admitted that he and Gogue lied about the Aramark food service contract and that UH did in fact control the term of that contract.

110. On November 13, 2006 ABC affiliate Channel 13 broadcast an on campus press conference held by plaintiff and Johnson. The subject matter was sweatshops and fair trade.

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111. The university spokesman Eric Gerber responded to Channel 13 reporters by giving them a false statement.

112. On November 20, 2006 University sent plaintiff an email stating “You are not welcome in the Office of the General Counsel with a video camera or other similar device.”

113. On December 19, 2006 plaintiff and several students and community members including Lenwood Johnson met with chancellor / president Jay Gogue concerning fair trade, sweatshops and African American studies program issues.

114. Following the meeting the chancellor’s office Gogue’s staffer called plaintiff requesting Lenwood Johnson’s phone number.

115. Shortly thereafter University staffer Dr. Jim Anderson called Lenwood Johnson to follow up on his concerns.

116. On February 7, 2007 plaintiff and Students for Fair Trade member Taylor Gibson were doing some informational tabling outside the University Center (UC). Theodore Kelley, special assistant to the Vice Chancellor / Vice President for Administration and Finance John Rudley had arranged the table reservation for plaintiff’s Students for Fair Trade group.

117. On February 7, James Pettijohn, Assistant Director, UC Event Services approached the table and told plaintiff and Gibson that if they did not leave immediately he would call the police. Plaintiff explained that Kelley had arranged the table reservation and that he should call Kelley to verify. He refused and verbally assaulted both plaintiff and Gibson for several minutes.

118. Plaintiff and Gibson packed up their materials and left. Plaintiff immediately went to Theodore Kelley’s office and spoke with him about the incident. Kelley apologized to plaintiff about what happened.

119. On February 9, 2007 plaintiff wrote a letter to UC director Keith Kowalka concerning James Pettijohn’s threats and verbal abuse.

120. On February 14, 2007 Kowalka answered the letter and attempted to assess blame on plaintiff and Gibson.

121. In March 2007 plaintiff presented a paper in the history department at an event sponsored by the honors society.

122. Elwyn Lee, vice chancellor of student affairs and husband of U.S. Congresswoman Sheila Jackson-Lee was invited to attend.

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123. The plaintiff’s paper concerned the battle to save Allen Parkway Village, a public housing project in the Freedmen’s Town area Houston. The plaintiff spoke of Jackson-Lee’s role in working against the African American residents that worked to save the public housing.

124. In April 2007 plaintiff was elected to the Student Government Association as the graduate senator at large.

125. In April, 2007 plaintiff emailed history department chair Susan Kellogg requesting that the history department computer lab computers homepage be taken off the Microsoft Network page and be set to the history department homepage.

126. On May 3, 2007 Kellogg wrote to plaintiff stating that it “may take a bit of time to get the homepage changed.”

127. In May, 2007 plaintiff emailed University board of regents chair Leroy Hermes about the lack of graduate students on the chancellor / presidential search committee.

128. On May 15, 2007 plaintiff received a letter from Leroy Hermes which stated that there was only one slot for a student on the Search Advisory Committee for a new president / chancellor. Hermes also wrote that the student was David Rosen the president of the Student Government Association. Rosen was out of Houston for the entire summer working at an internship.

129. In late May 2007 the plaintiff, representing Students Against Sweatshops, Lenwood Johnson, Njeri Shakur, Kenya Shabazz and several students met with interim president Rudley and other university staffers in Rudley’s office. The topic was the university’s use of sweatshop labor to manufacture UH logo clothes.

130. Rudley was angered that plaintiff brought community members Johnson, Shakur and Shabazz. Rudley was angered when Johnson tried to speak.

131. In June 2007 Rudley sent plaintiff a letter which stated that no community members would be permitted to attend future meetings between Students Against Sweatshops and UH administrators.

132. On June 8, 2007 plaintiff sent a letter to interim president /chancellor John Rudley informing him about the University’s general counsel’s repeated violations of the Texas Public Information Act (Government Code Chapter 552).

133. Plaintiff’s letter to Rudley requested that he take immediate action to correct the general counsel’s illegal behavior.

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134. On July 5, 2007 plaintiff send a fax to each University board of regents member requesting that someone answer his June 8, 2007 letter to Rudley.

135. In July 2007 Dr. Robert Buzzanco became chair of the history department.

136. On August 14, 2007 at 11:49 Buzzanco department sent plaintiff an email stating that he “did not get a teaching assistant’s position this semester.”

137. In the first or second week of the fall 2007 semester Buzzanco and various history department staffers began to harass the plaintiff.

138. The first time plaintiff entered the history department office in fall 2007 semester he used the department photocopier machine. Buzzanco came out of his office and accosted plaintiff and demanded to know what he was copying.

139. Plaintiff explained that some of it was for Dr. Walther’s class and some of it was personal copies that he was paying for.

140. From that point on various history department staffers subjected the plaintiff to similar aggressive verbal abuse every time he went in the history department office.

141. On September 27, 2007 at the request of the Plaintiff, Buzzanco met with plaintiff, plaintiff’s daughter and plaintiff’s colleague Njeri Shakur.

142. The subject of the meeting was why the plaintiff did not get a teaching assistant position for the 2007-2008 school year.

143. In the meeting one of the first things Buzzanco said was that the department could not have any specific criteria to choose graduate teaching assistants.

144. Plaintiff expressed his concern that there no transparency to the department’s process to determine who should receive graduate assistantships.

145. Plaintiff asked Buzzanco if his activism had anything to do with the department’s decision not to fund plaintiff.

146. Buzzanco denied that plaintiff’s activism was involved in his decision not to fund plaintiff. Buzzanco said that he had reviewed his own letter recommending plaintiff get funded and then decided to cut plaintiff’s funding.

147. Plaintiff explained that the interim president Rudley had taken out a full-page ad in the college newspaper denouncing the concerns of both student groups that the plaintiff had founded, Students for Fair Trade and Students Against Sweatshops.

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148. Buzzanco claimed that plaintiff could still get funding for the spring 2008 semester.

149. On September 29, 2007 plaintiff emailed Dean John Antel and requested a meeting to talk about why his funding was cut for the 2007-2008 school year.

150. On September 29, 2007 Antel answered plaintiff’s email and wrote that he delegated these decisions but that he would “check on the process.”

151. On October 1, 2007 plaintiff sent Buzzanco a letter about their meeting and requested that Buzzanco inform him the date that history department graduate students would be informed about their spring 2008 funding status.

152. Buzzanco never answered plaintiff’s letter.

153. On October 11, 2007 plaintiff spoke with Antel in the lobby of his office and asked about the status of him checking on plaintiff’s funding.

154. Antel advised that he was “still checking.” Plaintiff said that he was aware that Dr. Sally Vaughan, a history professor had been told the same thing about money she had been entitled to and that Antel never got back to Vaughan.

155. Antel advised that plaintiff should “sue the university” and that Antel “loved lawsuits.”

156. On October 16, 2007 Welcome Wilson, Sr. chairman of the University board of regents sent plaintiff a letter responding to plaintiff’s July 5, 2007 letter about the University general counsel’s office state law violations. Wilson’s letter did not address concerns and concluded with the sentence, “We will not be responding further to you.”

157. From August 2007 Plaintiff was the student member of the Graduate and Professional Student Committee (GPSC). During the November GPSC meeting plaintiff left the meeting early because his daughter was making noise. The plaintiff waited in the hall outside the conference room until the meeting was complete.

158. When the Dean of Graduate and Professional Studies Marco Mariotto came out of the meeting for a restroom break plaintiff had a conversation with him about Dean Antel’s advice to sue the university. Plaintiff requested that Mariotto look into why the plaintiff’s funding was cut and asked him to speak with Antel about his unprofessional behavior. Plaintiff never heard anything from Mariotto.

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159. On December 3, 2007 Dr. Frank Holt, the history department graduate director informed plaintiff that contrary to what Dr. Buzzanco told him about spring graduate funding, “Department policy is that student funding 'rolls over' from the Fall to Spring semester. I assume, therefore, that your funding status will not change.”

160. On December 4, 2007 plaintiff and his daughter Yuna attended a holiday party for student leaders. The party was held in the on campus Hilton hotel.

161. During the party plaintiff witnessed interim university president John Rudley assault a student. The student was carrying a large piece of cardboard approximately 10 feet long.

162. Plaintiff heard the student telling Rudley that it was a gift.

163. Shortly after plaintiff witnessed Rudley’s assault on the student, a female university staffer approached plaintiff and began screaming at him. The staffer wanted to know why plaintiff was at the party.

164. Plaintiff told the staffer that he was there because he had an invitation. Plaintiff showed the staffer his invitation as well as another invitation to a December 8 holiday jazz party at the university president’s residence at 1505 South Boulevard.

165. The staffer grabbed plaintiff’s invitation to the December 8 jazz brunch and screamed, “Where did you get this?” Plaintiff informed her that he got it in the mail.

166. About an hour or so after plaintiff witnessed Rudley attack and wrestle with the student, Rudley approached plaintiff who was kneeling on the ground feeding his daughter who was sitting in a stroller.

167. Rudley informed plaintiff that he was going to be the CFO of the University and that he would make sure that the plaintiff was kicked out of the university.

168. Immediately after the party was over plaintiff and his daughter went to the history department to Dr. Walthers office to turn in his final paper for the class he took from Dr. Walthers. Plaintiff mentioned to Walthers how the president of the university had just threatened him.

169. On December 5, 2007 plaintiff received an email from university staffer Janice Newman. The email said that “Because of your disruptive behavior at the Holiday Party for Student Leaders held at the UH Hilton yesterday, I am withdrawing my invitation to you and your guest for the Faculty/Staff Holiday

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Event scheduled for Saturday, December 8th at The Wortham House.” John Rudley signed the email.

170. On December 6, 2007 plaintiff received a letter delivered to his house by Federal Express.

171. The letter was from John Rudley and said the same thing that Rudley’s email of December 5.

172. On Wednesday January 9, plaintiff met with Dean of Graduate and Professional Studies Marco Mariotto in his office.

173. In the meeting plaintiff gave Mariotto a copy of this October 1, 2007 letter to Robert Buzzanco and requested that Mariotto look into the concerns he raised and address them.

174. In the meeting with Mariotto plaintiff related his concerns about his graduate funding being cut and requested that Mariotto look into it.

175. Plaintiff also informed Mariotto of the financial costs incurred by plaintiff because of Buzzanco’s late notice to plaintiff about his 2007-2008 funding.

176. Plaintiff never heard anything from Mariotto about his concerns.

177. On January 11, 2008, plaintiff received a “Student Life Referral” from Assistant Dean of Students Bianca Springer.

178. The Student Life referral included a memorandum from John Rudley to Bianca Springer and was dated December 7, 2007. The memorandum signed by Rudley falsely claimed that Plaintiff refused to leave the holiday party in Grand Ballroom after being asked to do so by UH Hilton Management, UH Hilton Security and Rudley.

179. In January 2008 the plaintiff put in an application for a graduate teaching assistantship for the 2008-2009 school year.

180. The application for graduate teaching assistantship position in the history department provided no criteria about how the department determined who received funding.

181. On the morning of March 6, 2008 plaintiff and his daughter went to the history department computer lab to print out financial aid forms to apply for a scholarship.

182. The printer in the computer lab only had a few pages of paper.

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183. The plaintiff and daughter went to the history department office and asked University staffer Gloria Ned for some paper. Ned replied that there was a lot of paper in the lab and asked what had happened to it. Ned ordered that plaintiff return to the lab and she would bring some paper.

184. Ned came into the computer lab and demanded to know what plaintiff was printing. Ned approached plaintiff’s computer and plaintiff showed her that it was a financial aid form.

185. Ned said that it wasn’t “history related” and yanked the drawer out of the printer and refused to allow plaintiff to print his financial aid form.

186. A few hours later plaintiff sent a notice of intention to file a grievance via email to Buzzanco and related Ned’s unprofessional behavior.

187. Shortly thereafter plaintiff received notice from the dean of students office that Buzzanco had filed charges against him claiming that plaintiff had yelled at Gloria Ned.

188. On March 14, 2008 Bianca Springer held a University Hearing Board procedure concerning the false complaint filed by John Rudley on December 7, 2008.

189. At the hearing plaintiff was denied due process because John Rudley did not appear as a witness. No police reports or any other evidence was provided that would show that plaintiff was ordered to leave the holiday party by UH Hilton Management, UH Hilton Security or Rudley.

190. The outcome of the hearing was that despite any evidence plaintiff was found to have disrupted the holiday party and plaintiff was placed on academic probation until May 2009.

191. In the spring 2008 semester plaintiff’s group “Students Against Sweatshops” got thirty media mentions including television, radio and several articles in the Houston Chronicle.

192. In April 2008, plaintiff took and passed his PhD comprehensive exams.

193. In May 2008, plaintiff and his daughter attended a university disciplinary hearing for the fabricated charges that history department chair Buzzanco had filed against him. The hearing board found that the charges were not substantiated. Assistant Dean of Students Bianca Springer who conducted the hearing was very angry about the outcome.

194. Immediately after the hearing plaintiff and his daughter were walking down the hallway. Plaintiff told his daughter that justice was served. Bianca

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Springer who was walking ahead of plaintiff and his daughter angrily said “Don’t talk to me.” Plaintiff told her he was speaking to his daughter. Springer replied “I’ll make sure you get kicked out of this university.”

195. On the morning of May 16, 2008 plaintiff received a phone call from V.P. of student affairs Elwyn Lee. Lee wanted to meet with plaintiff that afternoon to discuss fair trade coffee on campus and other “issues.” Plaintiff declined a meeting that day because plaintiff was at the site of his church, Mt. Carmel Missionary Baptist in Freedmen’s Town. The City of Houston was starting the process to prematurely demolish plaintiff’s church.

196. On May 19, 2008 plaintiff and his daughter met with Lee in his campus office. After fair trade coffee issues were discussed plaintiff informed Lee how history chair Buzzanco had cut his funding and had refused to answer letters and emails concerning the matter.

197. Lee took notes on a yellow legal pad as plaintiff described the actions Buzzanco had taken to cut plaintiff’s funding. Plaintiff informed Lee about Buzzanco’s well-known hot temper. Plaintiff asked Lee to look into why his funding was cut for the 2007-2008 school year and also to find out why plaintiff had not yet been informed about his 2008-2009 funding.

198. At the end of the meeting plaintiff asked Lee what church he attended because plaintiff and other members of Mt. Carmel would be going around to churches asking them to help clean up the rubble from Mt. Carmel and / or get church members involved in the campaign to rebuild Mt. Carmel. Lee became concerned and said he had no more time to talk and that the meeting was over but that they could meet again.

199. Plaintiff never heard anything from Lee about his graduate funding and the apparent special treatment he was being singled out for by history department chair Buzzanco.

200. Subsequently plaintiff emailed V.P. Elwyn Lee and informed him that he would not allow his congresswoman Sheila Jackson-Lee to go around claiming that she was helping plaintiff’s church, Mt. Carmel MBC if she was in fact doing nothing.

201. In May 2008, plaintiff filed a public information request for a copy of his student file.

202. The file included a recommendation letter written by professor Buzzanco for the plaintiff to get funded for the 2007-2008 school year. Buzzanco wrote that he had seen all the U.S. history PhD candidates that came in the department and that plaintiff was better than most of the students the department funded.

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Buzzanco also wrote that he hoped the department would decide to not fund plaintiff because he was “controversial” or because of his “demeanor.”

203. After reading through the contents of his student file plaintiff became concerned that his funding had been cut because of non-academic reasons.

204. In May, 2008 plaintiff and his daughter Yuna met with Dean Mariotto in his office. Plaintiff explained his concerns about not being timely notified about the status of his graduate funding for the upcoming school year.

205. Plaintiff explained that the University’s dilatory behavior was costing him money because he needed to buy a plane ticket to the East Coast to visit his father who is dying of cancer. Plaintiff explained the history department’s failure to notify plaintiff last year about his funding until late at night the day tuition was due. Plaintiff explained that he needed to know whether he was going to get the teaching assistantship because now he had finished his PhD classes and didn’t need to stay in Houston if he didn’t get the job.

206. On June 14 plaintiff received a letter dated June 13, 2008 from Robert Buzzanco. The letter stated that the plaintiff was “deemed eligible for funding and that he would be considered for a teaching assistantship if funding became available.” Buzzanco wrote that plaintiff should contact Dr. Guadalupe San Miguel if he had any questions about receiving funding for the 2008-2009 school year.

207. Plaintiff contacted another history department graduate student who related that he had received his offer of funding from the department in early May.

208. On June 14, 2008 plaintiff contacted Dr. San Miguel about his funding chances for the 2008-2009 school year.

209. Plaintiff’s email contained five questions including “Is it the normal procedure of the department to deny "qualified" PhD candidates for funding two years in a row? Or is this just in my case?” and asking when the university would provide a yes or no on plaintiff’s request for a graduate teaching assistant position for the 2008-2009 school year.

210. On June 14, 2008 plaintiff sent president Khator the same email he sent San Miguel. Chairman Buzzanco, dean Mariotto and vice chancellor of student affairs Elwyn Lee were also copied on the email.

211. On June 16, 2008 plaintiff and other members of Students for Fair Trade (SFT) held a press conference in front of the University library.

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212. After the press conference plaintiff and the other SFT members along with retired faculty member Herb Rothschild and members of the Service Employees International Union (SEIU) and ACORN went to president Khator’s office to deliver a letter.

213. After SFT leader Tiffany Le hand delivered the letter to Khator staffer Juany Jimenez plaintiff asked Jimenez some questions and everyone left.

214. The office visit was observed by at least three university police officers. On officer told SFT member Brendan Laws that a student filed a complaint for a free speech violation and that’s why the police were present.

215. On June 17, 2008 the Houston Chronicle posted an article on their website and a photo in their hard copy about SFT members and plaintiff’s trip to Khator’s office.

216. On June 19, 2008 plaintiff received an email from professor San Miguel that stated in part “It is not normal procedure to deny qualified candidates for whatever funding is available in the department.”

217. On June 25, 2008 plaintiff filed a complaint with president Khator against Elwyn Lee and Dean of Students William Munson. The complaint summarized most of what is in the instant complaint. The complaint included facts about Lee’s interference with plaintiff’s education that were apparently aimed to end plaintiff’s research into Lee’s wife’s actions in Freedmen’s Town. The plaintiff sent the complaint via email and certified mail. Khator never answered the complaint.

218. On June 26, 2008 plaintiff sent a letter to Buzzanco asking about the status

of his funding for the 2008-2009 school year. Buzzanco never answered.

219. On July 2, 2008 plaintiff sent Chancellor Khator and Graduate dean Mariotto a copy of his June 26, 2008 letter to Buzzanco. The letter concerned the lack of notice about his graduate funding. Plaintiff asked Dr. Khator why other graduate students had received notice of their funding status but the plaintiff had not. Plaintiff didn’t receive a reply from Mariotto.

220. In the fall 2007 semester PhD candidate and personal friend of chair Buzzanco Clayton Lust was hired by the department to teach a history class at the university.

221. In the spring of 2008 semester PhD candidate Graham Cox was hired to teach a class in the history department at the university.

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222. On July 3, 2008 plaintiff spoke with assistant Dean of the College of Liberal Arts and Social Sciences (CLASS) Sarah Fishman about the procedures to apply for an adjunct teaching job in the history department.

223. Fishman informed plaintiff that they hired Houston Community college professors and not PhD candidates from the university to teach classes in the history department.

224. On July 3, 2008 plaintiff emailed CLASS dean John Antel about hiring procedures for adjuncts in the history department.

225. Antel answered replied, “This is totally at the discretion of the department.”

226. On July 4, 2008 plaintiff again emailed dean Mariotto asking why he had not been informed of his funding status when other history department graduate students had been informed months ago.

227. Plaintiff was not permitted to apply for an adjunct teaching position in the history department.

228. Plaintiff received a letter from history professor Nancy Beck Young dated July 7, 2008. Young’s letter concerned the grievance filed against chairman Buzzanco for not being permitted to apply for an adjunct teaching position in the history department.

229. Beck-Young claimed in her letter that plaintiff’s grievance about not being permitted to apply for an adjunct teaching position was not matter that a grievance could be filed about.

230. On July 7, 2008 dean Mariotto answered plaintiff’s email about his funding. He failed to answer plaintiff’s questions about his graduate funding and wrote that he was in touch with the history department.

231. On July 9, 2008 CLASS dean John Antel emailed plaintiff and wrote “apparently you are too far down on the list to receive support at this time.”

232. Subsequent emails sent to Antel and others about what “list” Antel was referring to in his July 9, 2008 email to plaintiff went unanswered.

233. Because Dr. Khator failed to answer or address plaintiff’s concerns the only thing left for plaintiff to do to get his funding restored and the false disciplinary charges removed is to file the instant complaint.

COUNT 1 –FIRST AMENDMENT VIOLATION

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234. The elements of a section 1983 first amendment cause of action are: (1) that the plaintiff suffered an adverse employment action; (2) as a result of speech involving a matter of public concern; (3) that the plaintiff’s interest in commenting on the matter of public concern outweighed the defendant’s interest in promoting efficiency, and; (4) the adverse action was motivated by the protected free speech. Harris v. Victoria Indep. Sch. Dist., 168 F3.d 216, 220 (5th Cir. 1999) cited in Foley v. University of Houston Sys. 355 F.3d, 333, 341 (5th Cir. 2003).

235. It is clearly established law that a state university cannot punish a graduate student for content of his or her speech, U.S.C.A. Const. Amend 1, Papish v. Board of Curators of the Univ. of Missouri, 410 U.S. 667, at 670-7193 S.Ct. 1197, at 1199-2000, 35 L.Ed.2nd 618.

236. The University violated the plaintiff’s free speech rights by repeatedly filing false disciplinary charges against him for exercising his free speech and by not awarding him a graduate teaching assistant position for the 2007-2008 and the 2008-2009 school years and by not allowing him to apply for a faculty adjunct position in the history department.

COUNT 2 – RETALIATION

237. The elements of a section 1981 retaliation cause of action are (1) the plaintiff engaged in activity protected by section 1981; (2) an adverse employment action followed; and (3) there was a causal connection between the two. Foley v. University of Houston Sys. 355 F.3d, 333, 340 (5th Cir. 2003).

238. The University retaliated against the plaintiff for the exercise of his free speech by not awarding him a graduate teaching assistant position for the 2007-2008 and the 2008-2009 school years.

DAMAGES

239. Plaintiff seeks actual damages from the Defendants, jointly and severally, for the financial and emotional injuries that he has suffered in the past, and will suffer into the future.

240. Because the conduct of the Defendant constitutes legal malice, Plaintiff seeks punitive damages from Defendants, jointly and severally, under 42. U.S.C. section 1981 et. seq.

241. Plaintiff seeks all reasonable and necessary attorney’s fees and costs pursuant to state law and 42 U.S.C. section 1988.

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242. All reasonable and necessary costs incurred in the pursuit of this suit.

243. Plaintiff seeks both prejudgment and post-judgment interest and all other relief to which he may show himself entitled at law or in equity.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that upon final trial and hearing hereof, judgment be entered that orders:

a. Declaratory relief whereby defendants would be declared to have violated O’Brien’s rights as secured to him by the Constitutions of the United States of America and the State of Texas;

b. Declaratory relief whereby defendants will be ordered to remove the sanctions for the false disciplinary charges and discontinue the prosecution of the plaintiff for the currently pending false disciplinary charges.

c. Injunctive relief whereby defendants would be enjoined from further violating O’Brien’s constitutional rights and disparately denying O’Brien a position as a graduate teaching assistant and adjunct instructor in the history department;

d. Awarding damages both actual and punitive, to Plaintiff from Defendant;

e. Plaintiff recovers from Defendant both prejudgment and post-judgment as provided by law.

f. Reasonable and necessary attorney’s fees and costs of court, and

g. Plaintiff recovers such other and further relief, at law or in equity, to which he may be entitled.

Respectfully submitted,

___________________Timothy J. O’Brien Plaintiff, pro se1303 Ruthven Street Houston, TX 77019-5139 832.771.7263

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PLAINTIFF DEMANDS TRIAL BY JURY

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