Khan v. Southern Univ, et al

United States Court of Appeals
Fifth Circuit
F I L E D
August 19, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-30169
_______________
IMOGENE KHAN, ET AL.,
Plaintiffs,
RICHARD EUGENE EARLY,
Plaintiff-Appellee,
VERSUS
SOUTHERN UNIVERSITY & AGRICULTURAL & MECHANICAL
COLLEGE BOARD OF SUPERVISORS;
BENJAMIN PUGH; GRADY MORRIS; JEANETTE WILLIAMS; SAM GILLIAM;
JAMES BROWN,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
AS CHANCELLOR OF THE SOUTHERN UNIVERSITY-SHREVEPORT CAMPUS;
JUANITA MORRIS,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 5:00-CV-255
______________________________

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2
Before GARWOOD, SMITH, and CLEMENT,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Stating, without explanation, only that there
are genuine issues of material fact, the district
court denied the defendants’ motion for
summary judgment and to dismiss for failure to
state claims upon which relief may be granted.
Defendants appeal the interlocutory order be-
cause it denies qualified and sovereign
immunity. We affirm in part, reverse in part,
dismiss in part, and remand.
I.
A.
The former plaintiff, Imogene Khan, began
working in the police department of Southern
UniversitySSShreveport (“Southern”) in
1990.1 While at Southern, Khan was both the
only white and the only female member of the
Southern police force. Sam Gilliam, who
served briefly as interim Chancellor until April
1, 1999, appointed her to the interim position
of Lieutenant/Chief in January 1999.
During her tenure as interim chief, Khan
applied for permanent appointment to that po-
sition. She was the most senior member of the
force, and her performance evaluations were
exemplary. When Khan became Chief on
January 6, 1999, Ben Pugh, Southern’s Vice-
Chancellor, temporarily appointed Richard
Early as Assistant Chief.2 Pugh returned Early
to regular duty in November 1999.
Defendant Grady Morris also applied for
the position of Police Chief. He was a subor-
dinate Police Officer II under Khan and Early
until he was promoted to Interim Chief in No-
vember 1999 and permanent Chief in June
2000.3 He was married to Juanita Morris, a
classified civil service clerical worker.
When Southern appointed Khan Interim
Chief, Early supported her efforts and directly
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
1 Khan settled claims against the defendants; we
discuss facts surrounding her claims only to the
extent they are material here.
2 According to Early’s brief, he received an
associate degree from Southern in 1997 and a
bachelors degree from Louisiana Tech in 1998. He
was also completing an MBA program at Central
Michigan University. He served as a Southern
police officer, and his evaluations were consistently
strong.
3 Early alleges the following facts in his brief:
that he scored several points higher than Khan on
the civil service exam, but she had more tenure;
that Morris’s performance history was inferior to
that of Khan, whose evaluations reflected her supe-
rior record; and that Morris was permitted to resign
rather than face disciplinary action for un-
acceptable conduct. Morris also worked at the
Caddo Parish Sheriff’s Office as a corrections of-
ficer and a communications/radio room operator;
he resigned after being recommended for termina-
tion. He was subject to disciplinary action for
sleeping on the job and being away from his work
area on repeated occasions. He had two prior ar-
rests: one for false imprisonment that was ex-
punged in 1997, and one for issuing worthless
checks.
On his civil service application for police chief,
Morris apparently responded that he had never
resigned from a job to avert termination. Southern
learned that he had falsified his application in that
respect.

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3
associated with her. Early made his support
for her public and also disclosed that he had
observed race and sex discrimination against
her.
Early alleges that he suffered severe retalia-
tion as a result of his support for Khan by
seeking to place him on the midnight shift and
accusing him of stealing computers. Southern
authorities ultimately divested Early and Khan
of certain supervisory responsibilities, includ-
ing the ability to discipline inferior officers and
perform background checks.
Khan and Early took sick leave in October
1999, citing the stress and harassment they
were experiencing. Early claims that Southern
officials made it difficult for him to obtain his
pay by questioning his exercise of sick leave.
Southern terminated Early in March 2000, and
Khan in May 2000.
In December 1999 Khan signed EEOC
questionnaires containing specific claims of
discrimination. She signed a formal charge
that the EEOC sent to Southern in November
of 2000. In September 2001 the EEOC issued
Khan a right to sue letter.
B.
Early makes a variety of allegations against
Southern and against its officers in their offi-
cial and personal capacities. These allegations
include title VII claims based on race and sex
discrimination, title VII claims based on race
and sex retaliation, 42 U.S.C. § 1981 claims
based on racial discrimination and retaliation,
a variety of 42 U.S.C. § 1983 claims, 42
U.S.C. § 1985 conspiracy claims, and several
42 U.S.C. § 1986 claims.
The defendants challenge the order denying
their motion to dismiss. They premise appel-
late jurisdiction for this issue on Eleventh
Amendment and qualified immunity claims.
They devote most of their argument to the
substantive merits of the various claims. To
the extent that this appeal is from an interlocu-
tory order, we consider only those issues eli-
gible for interlocutory review.
Generally we do not have jurisdiction over
denials of motions to dismiss or motions for
summary judgment, because such pretrial or-
ders are not final decisions for purposes of 28
U.S.C. § 1291, which provides that courts of
appeals have jurisdiction over appeals from
final decisions of the district courts. There
are, however, exceptions for certain types of
immunity rulings.
II.
A.
The district court denied defendants’ mo-
tion to dismiss and motion for summary judg-
ment that were based on sovereign immunity.4
The collateral order doctrine furnishes us with
jurisdiction over an interlocutory appeal from
a denial of a summary judgment motion as-
serting sovereign immunity.5 The defendants
contend that the denial of the motions to dis-
miss and for summary judgment was error.
This is a legal question that we review de
novo. See Koehler v. United States, 153 F.3d
263, 265 (5th Cir. 1998).
4 The district court actually refused to dismiss
all claims insofar as the defendants moved to dis-
miss them based on sovereign immunity. We mere-
ly identify title VII and § 1983 because they are the
only two issues sufficiently briefed such that we
may render an informed judgment.
5 See P.R. Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139, 144-45 (1993); Mc-
Carthy ex rel. Travis v. Hawkins, 381 F.3d 407,
411-12 (5th Cir. 2004).

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B.
Southern maintains that there is an Eleventh
Amendment sovereign immunity bar to Early’s
title VII claims. The Supreme Court rejected
Southern’s position long ago, holding that a
private citizen can sue a state for title VII
damages in federal court.6
The two sides devote considerable space in
their briefs to whether Louisiana has waived its
sovereign immunity. This argumentation
entirely misses the mark, for private citizens
may pursue title VII actions in federal court
not because Louisiana has waived sovereign
immunity, but because Congress has abrogated
it.7
C.
Congress may abrogate Eleventh Amend-
ment immunity, or states may waive it, but in
this instance Louisiana has not waived its im-
munity in federal court for state law claims.8
Louisiana law provides that “[n]o suit against
the state or a State agency or political subdivi-
sion shall be instituted in any court other than
a Louisiana court.” LA. R.S. 13:5106. More-
over, we are not permitted to interpret waiver
of immunity in state law courts as a waiver of
immunity in federal courts.9 The inquiry, how-
ever, does not end there.
This court takes a case-by-case approach to
determining whether a state is the real party in
interest in suits brought against entities that
appear to be alter egos of that state. See Rich-
ardson v. S. Univ., 118 F.3d 450, 452 (5th Cir.
1997). A federal court “must examine the par-
ticular entity in question and its powers and
characteristics as created by state law to deter-
mine whether the suit is in reality a suit against
the state itself.” Laje v. R.E. Thomason Gen.
Hosp., 665 F.2d 724, 727 (5th Cir.1982).
In deciding whether a suit against an entity
is in reality a suit against the state, several fac-
tors must be determined: (1) whether the state
statutes and caselaw characterize the agency as
an arm of the state; (2) the source of funds for
the entity; (3) the degree of local autonomy
the entity enjoys; (4) whether the entity is con-
cerned primarily with local, as opposed to
statewide problems; (5) whether the entity has
authority to sue and be sued in its own name;
and (6) whether the entity has the right to hold
6 See Fitzpatrick v. Bitzer, 427 U.S. 445, 456
(1976); Usery v. La. ex rel. La. Dep’t of Health &
Hosp., 150 F.3d 431, 435 (5th Cir. 1998).
7 See Seminole Tribe v. Florida, 517 U.S. 44,
55 (1996) (stating the circumstances under which
Congress may abrogate state sovereign immunity).
Denials of motions to dismiss and motions for sum-
mary judgment in the title VII context do not
constitute final pretrial orders. See Jackson v. City
of Atlanta, Tex., 73 F.3d 60, 62 (5th Cir. 1996).
We dismiss the appeal with respect to all title VII
claims, except to the extent that those appellate
claims sound in sovereign and qualified immunity.
We therefore do not opine on either on (1) whether
Early has complied with title VII’s administrative
requirements or (2) whether there are sufficient
issues of material fact to preclude summary
judgment with respect to title VII.
8 Louisiana defines an employer as “. . . the
(continued...)
8(...continued)
state, or any state agency, board, commission, or
political subdivision of the state receiving services
from an employee and, in return, giving compensa-
tion fo any kind to an employee.” LA. R.S. 23:302.
9 See Great N. Life Ins. Co. v. Read, 322 U.S.
47, 54 (1944); Martin v. Univ. of Louisville, 541
F.2d 1171, 1175 (6th Cir. 1976).

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and use property.10 Although there is some
language suggesting that there are situations in
which Southern should not be treated as a
state entity, we have held that it is entitled to
Eleventh Amendment immunity if the state
does not waive it. See Richardson, 118 F.3d
at 454-56.11
D.
For the reasons discussed above, Southern
is subject to suit only if Congress intended to
abrogate state sovereign immunity. Section
1983 does not abrogate Eleventh Amendment
immunity, and Louisiana has not waived it.
Champagne v. Jefferson Parish Sheriff's Of-
fice, 188 F.3d 312, 314 (5th Cir. 1999).12 Any
§ 1983 suit against a defendant in his official
capacity must therefore be dismissed.
III.
Qualified immunity is appealable to the ex-
tent it turns on an issue of law.13 Such juris-
diction does not allow the reviewing court to
reach the merits on an interlocutory appeal.
See Felton v. Polles, 315 F.3d 470, 477 (5th
Cir. 2002).
The test for whether qualified immunity
applies asks (1) whether plaintiff has alleged a
violation of a clearly established constitutional
or statutory right and (2) if so, whether his
conduct was objectively unreasonable in light
of the clearly established law at the time the
incident took place. See Felton, 315 F.3d at
477. The second prong of this task actually
subdivides into two inquiries: (a) whether the
allegedly violated rights were clearly estab-
lished at the time of the incident and
(b) whether the violators’ conduct was objec-
tively unreasonable in light of those rights.
See id.
A.
Qualified immunity serves to “shield a
government official from civil liability for dam-
ages based upon the performance of dis-
cretionary functions if the official’s acts were
objectively unreasonable in light of then clearly
established law.” Thompson v. Upshur Coun-
ty, Tex, 245 F.3d 447, 456 (5th Cir. 2001).
Where a defendant pleads qualified immunity,
the burden of proof shifts to the plaintiff. See
Pierce v. Smith, 117 F.3d 866, 872 (5th Cir.
1997) (internal quotations and citations
omitted).
The standard of review for an interlocutory
order denying a summary judgment motion
sounding in qualified immunity differs some-
what from the standard usually applied to sum-
10 See Delahoussaye v. City of New Iberia, 937
F.2d 144 (5th Cir.1991); Tradigrain v. Miss. State
Port Auth., 701 F.2d 1131 (5th Cir.1983) (making
the analysis for purposes of diversity jurisdiction).
11 Although Louisiana’s assessment of whether
Southern is a state agency is not binding on federal
courts, it is worth noting that Article VIII, Sec. 7
of the Louisiana constitution considers the
Southern University System a Louisiana state
agency. Southern is, under the constitution, a sys-
tem under the control and management of its
Board.
12 Moreover, we do not reach the question
whether Congress intended to abrogate state sover-
eign immunity for §§ 1981, 1985 and 1986, be-
cause those issues are inadequately briefed by both
sides. We do clarify, however, that certain state
entities do in fact enjoy Eleventh Amendment
immunity from both § 1981 and § 1983 claims.
See Loya v. Tex. Dep’t of Corrections, 878 F.2d
860, 861 (5th Cir. 1989).
13 See Southard v. Bd. of Crim. Justice, 114
F.3d 539, 548 (5th Cir. 1997) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985)).

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mary judgment motions. Ordinarily we re-
view a summary judgment de novo, viewing
the evidence in the light most favorable to the
nonmovant. See Hare v. City of Corinth,
Miss., 135 F.3d 320, 325 (5th Cir. 1998). Be-
cause of our limited appellate jurisdiction over
interlocutory orders, however, we cannot re-
view whether the evidence “could support a
finding that particular conduct occurred.”
Behrens v. Pelletier, 516 U.S. 299, 313
(1996). We must take as given the facts that
the district court assumed when it denied sum-
mary judgment, and we determine whether
those facts state a claim under clearly estab-
lished law. See Nerren v. Livingston Police
Dep’t, 86 F.3d 469, 471 (5th Cir. 1996).14
B.
The individual defendants are victims of a
sparingly worded order denying their motions.
All the order states is that “genuine issues of
material fact remain.” We cannot sit as fact-
finder.
The district court makes no attempt to in-
dicate for which motions those “issues of ma-
terial fact remain.” Our problem is that, to re-
view an interlocutory order involving a denial
of a summary judgment motion sounding in
qualified immunity, we must take the facts as
the district court took them, but the order does
not reveal how the district court viewed the
facts in relationship to each qualified immunity
claim. We must therefore remand all questions
involving qualified immunity (and not
foreclosed by our sovereign immunity rulings),
because the factual predicates are not
available.15
The appeal o f the substantive title VII is-
sues is DISMISSED for want of appellate jur-
isdiction. The order is REVERSED insofar as
it denies immunity under § 1983 to defendants
in their official capacities, and insofar as it de-
nies sovereign immunity on state law claims.
The order is AFFIRMED insofar as it denies
summary judgment relating to title VII im-
munity claims. This matter is REMANDED as
to claims of qualified immunity and for further
proceedings as needed.
14 For example, the panel may review matters
such as (1) whether the right is clearly established
and (2) to the extent that the relevant discrete,
historic facts are disputed, the objective reason-
ableness of the defendants’ conduct. See Pierce v.
Smith, 117 F.3d 866, 871 (5th Cir. 1997) (internal
citations omitted).
15 Specifically, we remand for more factual ela-
boration any qualified immunity claims in regard to
§§ 1981, 1983, 1985, and 1986. We do not mean
to suggest that immunity status turns on the same
evidence for each statute, but merely that we lack
the evidence we need to review meaningfully any
qualified immunity determination under any
standard. See generally Johnson v. Jones, 515
U.S. 304, 317-18 (1995) (stating conditions under
which interlocutory appeal may be dismissed).

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