McIntosh v. Partridge, 07-20440.

Citation540 F.3d 315
Decision Date08 August 2008
Docket NumberNo. 07-20440.,07-20440.
PartiesJonathon C. McINTOSH, DDS, Plaintiff-Appellant, v. David PARTRIDGE, M.D., Individually and In His Official Capacity, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, CLEMENT and ELROD, Circuit Judges.

GARWOOD, Circuit Judge:

Jonathon McIntosh, DDS, appeals the district court's April 30, 2007 summary judgment based dismissal of his suit under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and Texas common law defamation. For the following reasons, we direct that the USERRA claim be dismissed for want of jurisdiction, and we otherwise affirm.

FACTS AND PROCEEDINGS BELOW

McIntosh was the director of dentistry and the treating dentist for the residents at the Richmond State School (RSS), a Texas home for people with mental and physical disabilities. RSS is a part of the Texas Department of Aging and Disability Services (TDADS). David Partridge, M.D., was the medical director of RSS and McIntosh's direct supervisor; Adalberto Barrera was the superintendent of RSS.

McIntosh was a member of the U.S. Navy Reserve, and he was called to active duty to serve in Iraq and Kuwait in October 2004. RSS contracted with another dentist, June Sadowsky, D.D.S., M.P.H., to treat the residents during McIntosh's tour of duty. Dr. Sadowsky reported that the residents' teeth were in poor condition, some having been neglected to the point where they needed to be cleaned before their conditions could be properly assessed. In early 2005, Dr. Corinne Scalzitti, D.M.D., conducted an audit of the professional aspects of RSS's dental clinic, after which she concluded that decisions made by McIntosh had impaired the quality of dental care at RSS.

When McIntosh returned from military service in October 2005, he notified Partridge of his desire to return to his position at RSS. On November 1, 2005, Partridge told McIntosh that his clinical privileges were suspended pending an independent investigation into charges of professional incompetence and violations of the applicable standard of care. Partridge placed McIntosh on paid leave, and he reported McIntosh's conduct to the state board of dental examiners. McIntosh requested a hearing from RSS to review his suspension, but none was held. On December 23, 2005, McIntosh brought this suit against Partridge, both individually and in his official capacity as medical director of RSS, asserting claims under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4311(a), the Equal Protection and the Due Process Clauses of the Fourteenth Amendment, and Texas common law defamation.1

Meanwhile, RSS hired Robert Anderton, D.D.S., J.D., to conduct an independent investigation of the allegations against McIntosh. As part of this investigation, he reviewed the residents' dental health and concluded that many residents suffered from extensive dental problems that were not properly treated or recorded on their charts by McIntosh. On August 24, 2006, Barrera provided McIntosh with a copy of Dr. Anderton's report and gave him the opportunity to present a response either in writing or in person by August 31, 2006. McIntosh declined this offer, but he subsequently requested, and was granted, an opportunity to submit a written response to the allegations. McIntosh submitted his response on September 6, 2006. After reviewing McIntosh's response, Barrera terminated McIntosh on September 8, 2006. McIntosh filed a formal grievance with the Health and Human Services Commission on September 25, 2006. The grievance was submitted to a neutral adjudicator. At the request of both parties, the grievance process was abated on October 18, 2006, pending the resolution of this lawsuit.

In the proceedings below, McIntosh's state law defamation claim was dismissed either upon McIntosh's own motion or for failure to state a claim because Partridge, as McIntosh's employer, had a qualified privilege to report allegations of misconduct to the state board of dental examiners and he did so without malice. Partridge then moved for summary judgment on the USERRA, equal protection, and due process claims, arguing that McIntosh could not establish that his suspension was motivated by his military service or that his constitutional rights were violated. McIntosh filed a cross-motion for partial summary judgment asserting that his equal protection and due process rights were violated because Partridge failed to grant him a hearing, as required by department procedures, before suspending him. Partridge also filed an amended motion to dismiss contending, inter alia, that the district court lacked subject matter jurisdiction over the USERRA claims and that the Eleventh Amendment barred claims against Partridge in his official capacity.

In its April 30, 2007 Opinion on Summary Judgment, the district court held that 38 U.S.C. § 4323 provided for federal jurisdiction over McIntosh's USERRA claim against Partridge, that Texas's sovereign immunity did not bar the suit from being brought in federal court, that McIntosh failed to establish that his termination was related to his military service, and that McIntosh's due process and equal protection rights were not violated. On that same day, the district court entered a judgment that McIntosh take nothing from Partridge in either his individual or official capacity.

On May 11, 2007, McIntosh filed a motion for reconsideration, which was denied on May 30, 2007. McIntosh timely filed his Notice of Appeal on June 5, 2007. Pursuant to Federal Rule of Appellate Procedure 44(a), Partridge filed a notice with this court that he would be asserting that McIntosh's USERRA claim was barred by the Eleventh Amendment. The United States intervened to defend the constitutionality of USERRA.

DISCUSSION

On appeal, McIntosh argues that the district court erred by granting Partridge's motion for summary judgment as to his USERRA, due process, and equal protection claims. He also asserts that the district court erred by improperly considering inadmissible evidence submitted with Partridge's motion for summary judgment and by dismissing his state law defamation claim based upon an affirmative defense that Partridge had failed to raise in his first responsive pleading.

Standard of Review

This court reviews "Eleventh Amendment immunity determinations, like other questions of subject matter jurisdiction, de novo as a question of law." United States v. Tex. Tech. Univ., 171 F.3d 279, 288 (5th Cir.1999). A district court's grant of summary judgment is reviewed de novo under the same standard applied by the district court. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir.1995). Summary judgment is appropriate when no disputed issue of material fact exists and the movant is entitled to a judgment as a matter of law. Id. Fact issues are viewed in the light most favorable to the nonmovant. Id. We review evidentiary rulings of the district court for abuse of discretion. Celestine v. Petroleos de Venez. SA, 266 F.3d 343, 349 (5th Cir.2001).

I. Federal Jurisdiction Over USERRA Claims Brought by an Employee Against a State as an Employer

USERRA is a federal law that protects employees from being discriminated against by their employers because of their military service. 38 U.S.C. § 4311. McIntosh argues that he was suspended and ultimately terminated from his position at RSS because of his military service in Iraq, and thus he brought a claim of discrimination under USERRA against Partridge, in his official capacity as medical director of RSS.2 Partridge and the United States argue that 38 U.S.C. § 4323(b)(2) strips the federal courts of jurisdiction over suits by an individual against a state as an employer, and that the district court erred by not dismissing McIntosh's USERRA claim for lack of subject matter jurisdiction.

USERRA's operative text lays out three separate types of claims and identifies which courts have jurisdiction over those claims.

"(1) In the case of an action against a State (as an employer) or a private employer commenced by the United States, the district courts of the United States shall have jurisdiction over the action.

(2) In the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State.

(3) In the case of an action against a private employer by a person, the district courts of the United States shall have jurisdiction of the action." 38 U.S.C. § 4323(b).

All parties agree that McIntosh's cause of action falls under subsection (b)(2) of this statute.

In its order, the district court reasoned that, since the statute provides that suits by individuals against a state "may," rather than "must," be brought in state court, Congress was not restricting jurisdiction to state courts. Based on its interpretation of the word "may," and because the previous version of the statute mandated federal jurisdiction over USERRA claims brought by individuals against states as employers, the district court concluded that McIntosh's USERRA claim could be brought in either state or federal court.3 This reasoning, however, departs from the proper standard for determining abrogation of sovereign immunity. The Supreme Court has held that "Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the...

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