Raj v. La. State Univ.

• Decision Date: 19 April 2013
• Docket Number: No. 12–30225.,12–30225.
• Citation: 714 F.3d 322
• Parties: Dr. Madhwa RAJ, Plaintiff–Appellant v. LOUISIANA STATE UNIVERSITY; Board of Supervisors of Louisiana State University and Agricultural and Mechanical College; Louisiana State University Health and Sciences Center in New Orleans, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

714 F.3d 322

Dr. Madhwa RAJ, Plaintiff–Appellant

v.LOUISIANA STATE UNIVERSITY; Board of Supervisors of Louisiana State University and Agricultural and Mechanical College; Louisiana State University Health and Sciences Center in New Orleans, Defendants–Appellees.

No. 12–30225.

United States Court of Appeals, Fifth Circuit.

April 19, 2013.

John–Michael Lawrence, John–Michael Lawrence, L.L.C., New Orleans, LA, for Plaintiff–Appellant.

Michael Franklin Nolan, Jr., Esq., William Peter Connick, Sr., Connick & Connick, L.L.C., Metairie, LA, for Defendants–Appellees.

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

Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

Dr. Madhwa Raj, a professor of biochemistry and obstetrics and gynecology at Louisiana State University (“LSU”), appeals the district court's dismissal of his complaint for lack of subject matter jurisdiction and for failure to state a claim on which relief can be granted. We find that sovereign immunity bars Raj's claims under state law; the Age Discrimination in Employment Act; and 42 U.S.C. § 1983 and § 1985. With regard to Raj's remaining claims, we recognize that a plaintiff is not required to establish a prima facie case of discrimination at the pleading stage, but we nonetheless conclude that Raj has failed to state a claim for which relief can be granted. We therefore AFFIRM the district court's judgment of dismissal.

I. Facts and Proceedings

Raj filed a complaint against LSU, the LSU Health and Sciences Center of New Orleans (“LSU Health”), and the LSU Board of Supervisors (the “LSU Board”), alleging discrimination based on his race, religion, national origin, age, and gender. For the purpose of reviewing the district court's dismissal of Raj's claims under Federal Rule of Civil Procedure 12(b)(6), we will “accept[ ] ‘all well-pleaded facts as true.’ ” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.2004)).

Raj is a male of East Indian origin; he is over the age of forty. In his complaint, Raj states that he became a full professor at LSU in 1984 and received tenure in 1987. Raj's grant funding from the National Institutes of Health ended in June 2009. He began writing proposals for new grants for his research on herbal treatments for ovarian and breast cancer. In addition, Raj published papers, gave a lecture on stem cell research, and supervised medical residents and a graduate student.

Raj alleges that, despite LSU rules and procedures, his performance was measured not by his accomplishments but by the amount of grant money that he obtained or failed to obtain. In December 2009, the chair of the department of obstetrics and gynecology, Dr. Thomas Nolan, began “harassing” Raj regarding this issue. Nolan told Raj that due to Raj's failure to acquire grant funding, LSU would be withdrawing the $15,000 in supplemental funds given to Raj the previous year. The complaint does not specify the funds' original purpose. In March 2010, Nolan asked Raj to write a letter of retirement effective June 30, 2010, although Raj had not expressed a wish to retire. After Raj's attorney contacted LSU personnel, Raj alleges that the harassment “ceased for a while, then began again.”

The dean of LSU medical school ordered that Raj's laboratory would be closed effective June 2010. The dean, along with Nolan, assigned Raj to work for an assistant professor in the core sciences laboratory, a change that “disgrace[d] and embarrass[ed]” Raj. Raj alleges that in closing his laboratory, LSU “gave away more than $300,000 of equipment and chemicals that [Raj] brought with him,” and inconvenienced his research and that of his graduate student.

LSU then informed Raj that his salary would be negotiated on his ability to obtain grant funding, notwithstanding Raj's understanding that his base salary was guaranteed by state funds; Raj was given five days to agree to these terms. Raj alleges that in January 2011, he discovered that his salary was the lowest of all similarly-qualified professors throughout his employment. Although Raj is a full professor, he alleges that his salary is below that of all associate professors in the basic science departments and is in the range of assistant professors. He states that, in contrast to his colleagues' salaries, his salary has not been increased for six years. Raj claims that LSU falsely represented that his salary was comparable to that of his colleagues.

Raj alleges that LSU's actions exacerbated his diabetes and caused neuropathy and chest pain, requiring him to take sick leave. While on sick leave, Raj tore his shoulder rotator cuff, causing his physician to extend his leave; he states that LSU's medical record requests forced him to undergo superfluous doctors' visits every ten days. Raj claims that LSU also refuses to allow him to take his earned annual leave of over eight months.

Raj filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in April 2011. The record does not contain the EEOC's response to the charge, but Raj alleges that “[o]n April 20, 2011, the EEOC issued a notice of right to sue.”

Raj filed a complaint in federal district court against LSU, LSU Health, and the LSU Board on May 12, 2011. Raj's complaintasserts claims under Title VII of the Civil Rights Act based on retaliation and discrimination due to his race and national origin, see42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act (ADEA), see29 U.S.C. § 621 et seq.; and the Equal Pay Act, see29 U.S.C. § 206(d)(1); as well as claims under Louisiana state law for breach of contract; intentional infliction of emotional distress and conspiracy to commit the same; and intentional fraud, intentional misrepresentation, and fraudulent inducement. Raj subsequently twice amended his complaint, adding claims under 42 U.S.C. § 1983 and § 1985 for discrimination and violation of equal protection based on gender and race and for conspiracy to commit the same; religious discrimination under Title VII; violations of equal protection and due process under the Fifth and Fourteenth Amendments; and Louisiana common law claims for intentional infliction of emotional distress and denial of due process. Raj's second amended complaint also stated claims for injunctive and declaratory relief against defendants “in their individual and official capacities,” but did not name individual officials as defendants.

Defendants moved to dismiss Raj's claims based on lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6).¹ The district court granted defendants' motion to dismiss on February 24, 2012. The district court dismissed all claims against LSU and LSU Health, finding they lacked capacity to be sued; dismissed Raj's ADEA and § 1983 and § 1985 claims as barred by the LSU Board's Eleventh Amendment immunity; and dismissed Raj's remaining claims under Rule 12(b)(6) for failure to allege facts on which relief could be granted.

Raj appeals, arguing that the district court erred in dismissing his claims under Rules 12(b)(1) and 12(b)(6), and contending that the district court should have allowed him the opportunity to amend his complaint in areas of fact and law that the district court deemed insufficient.

II. AnalysisA. Dismissal For Lack of Subject Matter Jurisdiction

We review a district court's ruling on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction de novo. Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d 565, 570 (5th Cir.2001). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001) (citations omitted).

The district court dismissed LSU and LSU Health from the case, ruling that they lack the capacity to be sued under Louisiana state law. SeeLa.Rev.Stat. Ann. § 17:3351(A)(1) (2011). Raj has waived appellate review of this ruling by failing to address it in his brief. SeeFed. R.App. P. 28(a)(9)(A) (appellant's brief must contain “contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”); United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir.2000) (“It has long been the rule in this circuit that any issues not briefed on appeal are waived.”).

The Eleventh Amendment bars citizens of a state from suing their own state or another state in federal court, U.S. Const. amend. XI; Hans v. Louisiana, 134 U.S. 1, 11, 10 S.Ct. 504, 33 L.Ed. 842 (1890), unless the state has waived its sovereign immunity or Congress has expressly abrogated it. Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325, 1335 (5th Cir.1994). Louisiana has expressly declined to waive its immunity under the Eleventh Amendment, seeLa.Rev.Stat. Ann. § 13:5106(A) (2010) (providing that “[n]o suit against the state or a state agency or political subdivision shall be instituted in any court other than a Louisiana state court”); Richardson v. S. Univ., 118 F.3d 450, 453 (5th Cir.1997) (“Louisiana has not waived its sovereign immunity for suits brought in federal court”), and Congress has not abrogated state sovereign immunity under the ADEA, see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), nor under § 1983, see Quern v. Jordan, 440 U.S. 332, 339–340, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979);Richardson, 118 F.3d at 453.²

Raj's only contention on appeal regarding subject matter jurisdiction is to note, correctly, that the Eleventh Amendment does not bar suits for injunctive or declaratory relief against individual state officials acting in violation of federal law. See Ex parte Young, 209 U.S....