John v. State of La. (Bd. of Trustees for State Colleges and Universities), No. 84-4524

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before RUBIN, RANDALL and TATE; RANDALL
• Citation: 757 F.2d 698
• Parties: 37 Fair Empl.Prac.Cas. 853, 36 Empl. Prac. Dec. P 35,181, 1 Fed.R.Serv.3d 891, 23 Ed. Law Rep. 1226 Alex JOHN, Jr., Plaintiff-Appellant, v. STATE OF LOUISIANA (BOARD OF TRUSTEES FOR STATE COLLEGES AND UNIVERSITIES, et al.), Defendants-Appellees. Summary Calendar.
• Docket Number: No. 84-4524
• Decision Date: 15 April 1985

Page 698

757 F.2d 698 37 Fair Empl.Prac.Cas. 853,
36 Empl. Prac. Dec. P 35,181, 1 Fed.R.Serv.3d 891,
23 Ed. Law Rep. 1226 Alex JOHN, Jr., Plaintiff-Appellant,
v.
STATE OF LOUISIANA (BOARD OF TRUSTEES FOR STATE COLLEGES AND
UNIVERSITIES, et al.), Defendants-Appellees. No. 84-4524 Summary Calendar. United States Court of Appeals,
Fifth Circuit. April 15, 1985.

Page 700

David T. Lopez, Houston, Tex., for plaintiff-appellant.

Bronfin, Heller, Feldman & Steinberg, Robert A. Kutcher, John D. Fricke, New Orleans, La., for defendants-appellees.

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

Before RUBIN, RANDALL and TATE, Circuit Judges.

RANDALL, Circuit Judge:

The district court granted the defendants-appellees' motion for summary judgment because (1) the plaintiff-appellant, by failing to follow a local rule that requires a response to all opposed motions, effectively agreed to the entry of summary judgment and, (2) at any rate, there are no genuine issues of material fact and the defendants-appellees are entitled to judgment as a matter of law. We must reverse the judgment because (1) a local rule cannot authorize summary judgment on a record that, under Rule 56, Fed.R.Civ.P., will not support it and (2) the record in this case will not support summary judgment.

I.

BACKGROUND

In July of 1980, Dr. Alex John, Jr. ("John"), a black male, was appointed Dean of University Relations at Northeast Louisiana University (the "University"). John was also a tenured assistant professor of psychology. John held the position of dean for a stormy eighteen-month period during which John frequently complained to the University president, Dr. Dwight Vines ("Vines"), that John had not been given responsibilities commensurate with his title, discussed his concerns with members of the Board of Trustees for State Colleges and Universities (the "Board"), and filed a charge of racial discrimination with the Equal Employment Opportunity Commission ("EEOC"). On January 8, 1982, the Board approved Vines' recommendation to remove John from the position of Dean of University Relations and to assign to him only teaching responsibilities. In response, John commenced this action in the district court against the State of Louisiana, the Board, the University, and Vines, both individually and in his official capacity (collectively, the "defendants"). John alleges that he was fired from the position of dean without due process, that he was fired in retaliation for filing grievances with the Board and the EEOC, that Vines intentionally and maliciously defamed him, and that

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he was given responsibilities and a salary inferior to other deans at the University simply because he is black. The complaint seeks (1) a preliminary injunction (a) reinstating John to the position of Dean of University Relations and (b) prohibiting the Board from eliminating that position; (2) a permanent injunction prohibiting defendants (a) from engaging in unlawful employment practices and (b) from terminating John's employment without due process; and (3) damages and attorney's fees under both Title VII and 42 U.S.C. Sec. 1983. The defendants moved to dismiss John's Title VII claim because, at the time suit was filed, John had not received a right-to-sue letter from the EEOC. The State, the Board, the University, and Vines (in his official capacity) also moved to dismiss the complaint because, under the Eleventh Amendment, the court lacks subject matter jurisdiction of the claims against these parties.

Thereafter, the court held a two-day hearing on John's request for a preliminary injunction and on defendants' motions to dismiss. Following the hearing, the court dismissed the Title VII claim without prejudice because John had not received notice of his right to sue. The court retained jurisdiction, however, of the request for injunctive relief pending the outcome of the EEOC investigation. With respect to the section 1983 claim, the court held that the Eleventh Amendment does not bar preliminary injunctive relief against the Board and the University because the relief sought is prospective in nature. The court denied the request for preliminary injunctive relief, however, because John did not show (1) "a substantial likelihood that he will prevail on the merits" of either his due process claim or his Title VII claim; (2) irreparable injury; or (3) that the potential injury to John outweighed the burden of an injunction to the defendants. Finally, the court reserved decision on whether the Eleventh Amendment bars John's claims for damages.

After the EEOC issued a right-to-sue notice, John amended his complaint to reinstate the Title VII claim. On June 9, 1983, the district court granted a motion to dismiss the section 1983 damages claims against the Board, the University, and Vines (in his official capacity) on the ground that these parties are "arms of the State" against whom, absent a waiver of sovereign immunity, suit is barred by the Eleventh Amendment. The court held, however, that the Eleventh Amendment does not bar John's claim for Title VII damages.

At this point in the litigation, claims for the following relief remained alive: (1) permanent injunctive relief against the University, the Board, and Vines; (2) damages for defamation against Vines in his individual capacity; and (3) Title VII damages against Vines, the Board, and the University. On December 15, 1983, a pretrial conference was held at which the court established a schedule for completing discovery and, perhaps as a result of an agreement among the parties, for submitting the case for resolution. Although the parties now disagree on the scope of the agreement reached at the pretrial conference, a pretrial minute entry states that (1) John will take the deposition of Board member Anthony Molina ("Molina") by January 10, 1984; (2) within thirty days of Molina's deposition, John will file a motion for summary judgment; and (3) defendants will respond to the motion within thirty days and, if they choose, file a cross-motion for summary judgment.

The schedule soon broke down. Molina was not deposed until January 23, 1984. Although the schedule called for John to file a motion for summary judgment within thirty days of Molina's deposition, John did not do so and, in fact, has never filed such a motion in this case. Instead, the parties and the court exchanged a series of letters and minute entries in which the method of disposing of the case was discussed. A January 20, 1984, minute entry states that, in the light of the schedule adopted at the pretrial conference, "the [January 30, 1984,] trial [setting] is continued without date, pending the court's decision on plaintiff's Motion for Summary Judgment and defendants' cross-motion."

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Thereafter, the court gave the parties notice of a July 5, 1984, trial setting. In a letter to the court, counsel for defendants questioned whether the trial setting was necessary because the parties had agreed in December that, beyond Molina's deposition, there was no need to take additional evidence and that the case could be submitted to the court on the existing record, without a full trial. John's counsel responded in a letter of his own. He stated that, although summary judgment might be helpful to narrow the issues, the ultimate question of defendants' motivation could probably not be resolved without a trial and the receipt of additional evidence. In a subsequent letter to the court, defendants reiterated that the parties agreed in December of 1983 that no evidence beyond Molina's deposition and the testimony developed at the hearing on the request for preliminary injunctive relief would be presented. John responded, in turn, that, while the parties agreed to submit motions for summary judgment, they recognized that, if summary resolution was not appropriate, additional evidence could be presented at trial. John indicated that, although there was no need to repeat the testimony presented at the preliminary injunction hearing, he desired to present additional evidence at a trial on the merits. John did not, however, mention specific evidence that he desired to present. Despite John's representations, the court removed the case from the trial docket. An April 5, 1984, minute entry states: "As the court decided at the last pretrial conference, this case is to be submitted by both parties on briefs, including suggested findings of fact and conclusions of law accompanied by the appropriate authorities."

On May 15, 1984, defendants filed a motion for summary judgment. The motion papers assert that Molina's deposition "poses no new substantive questions of fact which warrant this Court's consideration." Moreover, according to the motion, the record from the preliminary injunction hearing establishes that all defendants are entitled to judgment as a matter of law. The motion was set for argument on June 18, 1984. John's counsel received notice of the setting on a form which states that "Judge Scott will hear oral argument in all cases." (Emphasis in original.) The form also states, however, that the "time for briefing is governed by Local Rule 10(f) which is set out on the reverse side." The local rule provides that "[i]f the respondent opposes a motion, he shall file his response ..., brief, and such supporting documents as are then available, within ten days after service of the motion."

John did not respond to the motion in writing. Although a hearing was set for June 18, John's attorney was apparently informed that, on June 13, the court determined to grant the motion without hearing argument. On June 18, 1984, the court granted the motion. The court's findings state that "[a]t a pretrial conference concerning this matter held on December 15, 1983, the parties and the Court agreed that the matter could be tried on a summary judgment basis once plaintiff had taken the deposition of Mr. Anthony L....