Carbonell v. Louisiana Dept. of Health & Human Resources

• Decision Date: 03 October 1985
• Docket Number: No. 85-3088,85-3088
• Citation: 772 F.2d 185
• Parties: 38 Fair Empl.Prac.Cas. 1792, 38 Empl. Prac. Dec. P 35,756, 3 Fed.R.Serv.3d 866 Marta CARBONELL, Plaintiff-Appellant, v. LOUISIANA DEPT. OF HEALTH & HUMAN RESOURCES, Secretary of the Louisiana Dept. of Health & Human Resources, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 185

772 F.2d 185

38 Fair Empl.Prac.Cas. 1792,

38 Empl. Prac. Dec. P 35,756, 3 Fed.R.Serv.3d 866

Marta CARBONELL, Plaintiff-Appellant, v. LOUISIANA DEPT. OF HEALTH & HUMAN RESOURCES, Secretary of

the Louisiana Dept. of Health & Human Resources,

et al., Defendants-Appellees.

No. 85-3088

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 3, 1985.

Marta Carbonell, pro se.

Antonio L. Carbonell, New Orleans, La., for plaintiff-appellant.

Jesse James Marks, Asst. Atty. Gen., Dept. of Justice, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, GARWOOD and JOLLY, Circuit Judges.

POLITZ, Circuit Judge:

Marta Carbonell appeals the dismissal, after a bench trial, of her complaint invoking Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and 42 U.S.C. Secs. 1981 and 1983. The parties agreed to a trial before a magistrate with direct appeal to this court, 28 U.S.C. Sec. 636. Finding no merit in any claim presented, we affirm the dismissal for the reasons we set forth.

Facts

Carbonell is a native of Cuba. She was employed by the state of Louisiana in various capacities. Her last assignment was with the Louisiana Department of Health and Human Resources (DHHR) as a Clinical Social Worker V, in the New Orleans Substance Abuse Clinic. As the second highest employee in that clinic, Carbonell was the chief social worker and supervised the Spanish-speaking program, day and evening supervisors and Spanish personnel. It is apparent that personal friction existed between Carbonell and her immediate supervisor, Adrienne Mouledoux, the district administrator.

Beginning in 1976 Carbonell filed various complaints with the Equal Employment Opportunity Commission (EEOC). The first complaint was against Mouledoux and raised claims of discrimination based on national origin. Subsequent complaints charged retaliatory acts allegedly triggered by the EEOC filings. Matters worsened until Calvin Bankston, head of the DHHR Bureau of Substance Abuse, determined to solve his department's serious personnel problem by separating the protagonists. He reassigned Carbonell from the New Orleans Substance Abuse Clinic to a newly designated Substance Abuse Clinic in neighboring St. Bernard Parish. Carbonell was assigned to the new clinic as its administrative head and was told to report for duty on August 21, 1979. Carbonell declined, considering this transfer discriminatory retaliatory, and tantamount to an assignment to "Outer Mongolia," a characterization not likely shared by the thousands of residents of St. Bernard Parish.

In lieu of reporting to St. Bernard on August 21, 1979, Carbonell visited the EEOC office, filed a complaint, and then went to the New Orleans clinic. She was instructed to declare in writing whether she would accept her new assignment. By day's end on August 21, Carbonell delivered a letter to Mouledoux stating that she was "herewith declining the assignment and taking the proper legal action."

On August 22, 1979, Carbonell called Bankston and told him of her refusal to obey his transfer order. Bankston placed Carbonell on a three-day suspension without pay for insubordination and orally ordered her to report to the St. Bernard clinic on August 27. On August 24, Carbonell was given a written confirmation of the suspension and directed in writing to report to St. Bernard on August 27.

Carbonell responded to the suspension by amending her EEOC charge to include a claim that the transfer was in retaliation for her EEOC filing. Instead of reporting to St. Bernard on August 27, Carbonell opted to again report to the New Orleans clinic. Early that morning her husband delivered a letter to Mouledoux's home, addressed to Bankston, in which Carbonell repeated her charge that the transfer was arbitrary, illegal, abusive, and in retaliation for filing EEOC complaints. She again declined to report to St. Bernard and stated that at 10:30 a.m. she would be at the New Orleans clinic.

When Carbonell arrived at the New Orleans clinic on August 22 she was met by Bankston who urged her to consider the seriousness of her refusal to accept the reassignment. Bankston again ordered her to report to St. Bernard. Carbonell refused. Later that day she was given a letter of removal which she promptly appealed to the Louisiana Civil Service Commission (CSC).

The CSC appointed a referee who conducted public hearings on August 11-13, 1980; April 20-24, 1981; May 26-29, 1981; and June 8-9, 1981. The CSC affirmed the DHHR removal. On appeal, the Louisiana Court of Appeal for the First Circuit affirmed the CSC decision. Carbonell v. Dept. of Health & Human Resources, 444 So.2d 151 (La.App.1983).

After her dismissal, Carbonell again amended her EEOC complaint to charge that the dismissal was retaliatory. The EEOC declined to press the matter and issued the statutory right-to-sue letter. Carbonell filed the instant suit claiming, as above noted, Title VII, Sec. 1981, and Sec. 1983 violations.

A bench trial before the magistrate lasted a week. At the outset of his memorandum opinion the magistrate stated:

If this Court were to make findings of fact based upon the evidence presented and testimony offered at trial, they would be identical to those facts set forth by the First Circuit Court of Appeal in its decision. This Court hereby adopts the findings of the state appeals court as its own. Carbonell v. Dept. of Health and Human Resources, No. 83-0186 (La.Ct.App. 1st Cir., Dec. 22, 1983).

After making these factual findings by reference and adoption, the magistrate proceeded to dismiss all claims. The Title VII claims against all individual defendants were dismissed because they were not the employer and Title VII was not applicable to them. The Title VII complaint against DHHR was dismissed on grounds of res judicata. The Sec. 1981 claim was dismissed for failure of any evidence of intent to discriminate against Carbonell on the basis of national origin. Finally, as to the Sec. 1983 claim, the magistrate found that Carbonell was inappropriately attempting to appeal a decision of the Louisiana court to the federal court, a matter over which the court lacked jurisdiction.

Analysis

Carbonell urges, with subcategorizations, more than a score of assignments of error. Most are totally without merit. We combine the remainder for review.

A. Section 1981 Claim

As an appellate tribunal, we are constrained by Fed.R.Civ.P. 52(a) to accept all findings of fact made by the trier of fact, in this instance the magistrate, unless shown to be clearly erroneous. There has been no such showing. Nor could any such showing be made. The facts as found by the magistrate, through his adoption of the state court findings, are fully supported by the record. This claim borders on the frivolous.

B. Section 1983 Claim

Stripped to its essentials, Carbonell's Sec. 1983 complaint would have the district court sit in review of the decision of the Louisiana First Circuit Court of Appeal. The district court lacks jurisdiction to conduct that exercise. As we held in Kimball v. The Florida Bar, 632 F.2d 1283, 1284 (5th Cir.1980):

Stripped to its essentials, Kimball's petition for declaratory and injunctive relief asks the federal district court to reverse a final, definitive state court order. As we stated in Lampkin-Asam v. Supreme Court of Florida, 601 F.2d 760 (5th Cir.1979): "This Court has held on numerous occasions that federal district courts do not have jurisdiction under 42 U.S.C. Sec. 1983 or any other theory to reverse or modify the judgments of state courts." We echo that it "is axiomatic that a federal district court, as a court of original jurisdiction, lacks appellate jurisdiction to review, modify, or nullify a final order of a state court. 28 U.S.C. Sec. 1257(3)." Id. The proper forum for the relief Kimball now seeks was the United States Supreme Court.

It is hornbook law that Sec. 1983 does not create a federal cause of action but, rather, a remedy for the vindication of other federal statutory or constitutional rights. That those rights have been adjudicated in a state court under concurrent Sec. 1983 jurisdiction or under a state cause of action is of no moment: once a determination has been made by a state court relative to the existence or non-existence of a federal right, and any possible infringement of that right, the only avenue of review is to the United States Supreme Court via 28 U.S.C. Sec. 1257(3). As a panel of this court observed:

A federal district court, as a court of limited original jurisdiction, lacks power to review, modify or nullify a final order of a state court. Nor can a party, aggrieved by a judicial decision of a state's highest court, invest a lower federal court with such jurisdiction by clothing his or her grievance in the garb of Sec. 1983 and alleging that the decision of the state court deprived him or her of constitutionally protected rights or interests.... A party seeking relief from such an allegedly unconstitutional action by a state court may seek review in only one federal court--the United States Supreme Court.

Dasher v. Supreme Court of Texas, 650 F.2d 711, 714-15 (5th Cir.1981), rev'd on other grounds, 658 F.2d 1045 (5th Cir.1981) (on reh'g ), reh'g opinion disapproved, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 n. 16 (1983). See also Brown v. Chastain, 416 F.2d 1012 (5th Cir.1969); Gresham Park Community Organization v. Howell, 652 F.2d 1227 (5th Cir.1981).

We recognize that Carbonell has not faulted the Louisiana court, as such, but she asserts the same claims previously asserted in the state system. She maintains that the DHHR violated her Title VII fair employment rights. The underlying federal right now advanced is identical to that adjudged by the Louisiana court. Thus, whether the dismissal of the Sec. 1983 claim for lack of jurisdiction...