Hines v. MS Dept of Corr ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________________
No. 00-60143
Summary Calendar
_____________________
ALAN D. HINES,
Plaintiff - Appellant,
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS,
Defendant - Appellee.
---------------------------------
Appeal from the United States District Court
for the Southern District of Mississippi
3:99-CV-133-BN
November 14, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Alan Hines appeals his claims of racial harassment,
retaliation, and discrimination under Title VII; his claims under
sections 1981, 1983, and 1985(3) that his civil rights were
violated; and his claim that he was denied due process before the
Mississippi Employee Appeals Board and the district court.
FACTUAL AND PROCEDURAL BACKGROUND
Following an administrative review, Alan Hines received a
Letter of Termination of Employment on June 18, 1998. Prior to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
his termination, Hines had worked 12 years for the Mississippi
Department of Corrections (MDOC). Since October 1995, Alan Hines
had held the position of Correctional Administrator III (Captain)
in Area II of the Central Mississippi Correctional Facility. The
termination letter stated Hines was being terminated because of
two Group Three violations resulting from a May 2, 1998 incident.
Specifically, Hines violated MDOC Policy #01.38 entitled,
“Prohibition of use of inmates as servants,” by using three
inmates to work on his privately owned vehicle. Hines’ second
Group Three violation for the “falsification of records . . . or
other official state documents,” was based on his written
statement to the Internal Audit Division that no inmates had
performed any labor of his privately owned vehicle. Hines
appealed his termination to the Mississippi Employee Appeals
Board and a hearing was conducted on October 13, 1998.
The Appeals Board found that the watch commander, Captain
Jack Joiner, responding to a call, went to the prison’s parking
lot and along with the prison’s superintendent, John Donnelly,
observed prisoners working on Hines’ vehicle. According to
testimony before the Board, Hines and at least one of the
prisoners admitted to the work being performed on his vehicle.
Based on the evidence presented, the Board concluded that:
The appellant has the burden of proving that the action
taken was in error or was arbitrary or capricious; the
appellant has failed to sustain this burden.
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The respondent acted in accordance with the published
policies, rules, and regulations of the State Personnel
Board, and the action taken by the respondent was allowed
under the said policies, rules, and regulations, hence the
action of the respondent must be allowed to stand.
Hines presents a starkly different version of the facts. On
the day in question, he and another off-duty correctional
officer, Gary Smith, arrived at the prison to fix his truck which
he had left in the parking lot the night before. As the two of
them were being accompanied to the parking lot by Lt. Norris
Kennedy, three prisoners emerged from the visitation room.
Because he was short of staff, Kennedy asked Hines if he would
monitor the three prisoners while they cleaned up the parking
lot. According to Hines, the three prisoners were those
responsible for cleaning up the lot on visitation days and it
would not have been uncommon for them to clean the lot without
any supervision. Shortly after he began working on his truck,
Superintendent Donnelly arrived on the scene and accused Hines of
using the inmates to repair his vehicle. Five to ten minutes
later, after the inmates had been sent back to their cells,
Captain Joiner arrived and asked Hines for the names of the
inmates that had been present. Five days after the parking lot
incident, Hines filed a complaint against Superintendent Donnelly
alleging a pattern of racial harassment.
DISCUSSION
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The district court properly granted summary judgment to the
defendant on plaintiff’s claims of racial discrimination in
violation of Title VII. The plaintiff failed to prove the
elements needed to establish his prima facie case. To establish
a prima facie case of discrimination Hines generally must prove
that: (1) he is a member of a protected class; (2) he was
qualified for the position that he held; (3) he was discharged;
and (4) he was replaced by someone not within the protected
class. Bennett v. Total Minatome Corp., 138 F.3d 1053, 1060 (5th
Cir. 1998). Plaintiff presented no evidence to the district
court that he was replaced by an individual that was not a member
of the protected class nor did he present other circumstantial
evidence from which a reasonable factfinder could infer
discriminatory intent.
As an alternative basis for dismissing the claim, the
district court found that Hines had not presented sufficient
evidence that the defendant’s non-discriminatory reason for his
termination, the policy violations, were a pretext. A party
opposing summary judgment may not rest upon mere allegations
contained in the pleadings, but must set forth and support by
summary judgment evidence specific facts showing the existence of
a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255-57, 106 S.Ct. 2505, 2513-14 (1986). Other than his
own assurances of what would be presented and proven at trial,
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Hines presented no evidence showing the falsity of the
defendant’s proferred reason.
Liberally construing his complaint, Hines also raised a
claim for retaliation under Title VII. Hines alleges that
Superintendent Donnelly had been harassing him because of his
race and when he filed a complaint with the Commissioner,
Donnelly retaliated by ordering the investigation which led to
his termination. To establish a prima facie case of retaliation
under Title VII, a plaintiff must show “(1) that [he] engaged in
an activity protected by Title VII, (2) that an adverse
employment action occurred, and (3) that a causal link existed
between the protected activity and the adverse employment
action.” Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir.
1996). The defendant does not contest that prongs (1) and (2)
are satisfied, but argues that Hines has failed to establish the
requisite causal link. The district court bundled this claim
into its analysis of whether Hines had presented sufficient
evidence of pretext. The district court concluded that he had
not presented evidence, other than his own allegations, that he
was fired in retaliation for filing the complaint rather than for
his violation of the MDOC’s Guidelines. Similarly, we find no
evidence in the record showing the investigation was conducted in
response to Hines’ racial harassment complaint. Hines’ claim is
further undercut by the temporal relationship of the events --
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the parking lot incident occurred on May 2, while his complaint
was filed five days later on May 7.
Despite the contention of the MDOC, it appears from the
record that Hines properly raised his claims under §§ 1981, 1983
and 1985(3). In its opinion and order, the district court
granted summary judgment and dismissed the plaintiff’s Title VII
claims without reference to his §§ 1981, 1983, and 1985(3)
claims. The MDOC argues, in two conclusory paragraphs, that the
claims are barred by the Eleventh Amendment. We do not generally
consider issues that were not addressed by the district court
unless our failure to do so would result in grave injustice,
Masat v. United States, 745 F.2d 985, 988 (5th Cir. 1984), or
unless the issue can be resolved as a matter of law or is
otherwise beyond doubt. Texas v. United States, 730 F.2d 339,
358 n. 35 (5th Cir. 1984). The second exception is applicable in
this case.
The Eleventh Amendment bars suits in federal court by a
citizen of a state against his own state or against a state
agency or department. Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67(1984); Hirtz v. Texas, 974 F.2d 663, 665 (5th Cir. 1992). The
Mississippi Department of Corrections is a department of the
state of Mississippi and enjoys the same immunity as the state
itself. Congress, however, can abrogate the states' sovereign
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immunity when acting to enforce constitutional rights pursuant to
section 5 of the Fourteenth Amendment. See Seminole Tribe of
Florida v. Florida, 116 S.Ct. 1114, 1128 (1996) (citing
Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666 (1976)).
Congress has not chosen to abrogate the states’ immunity for
suits under §§ 1981, 1983, and 1985(3), Sessions v. Rusk State
Hospital, 648 F.2d 1066, 1069 (5th Cir. 1981) (“Section 1981
contains no congressional waiver of the state’s eleventh
amendment immunity); Howlett v. Rose, 496 U.S. 356, 364, 110
S.Ct. 2430, 2436 (1990) (“Will [v. Michigan Dept. of State
Police, 491 U.S. 58, 109 S.Ct. 2304 (1989)] establishes that the
State and arms of the State, which have traditionally enjoyed
Eleventh Amendment immunity, are not subject to suit under § 1983
in either federal court or state court.”); Fincher v. State of
Florida Department of Labor & Employment Security – Unemployment
Appeals Commission, 798 F.2d 1371, 1372 (11th Cir. 1986) (holding
that Congress did not abrogate the states’ immunity in enacting
Section 1985), therefore Hines’ claims are barred as a matter of
law.
Finally, Hines was not denied due process by the Appeals
Board or the district court. Hines presents no evidence, nor in
this instance does he even allege, that he was not allowed to
fully present his case before the Appeals Board or the district
court. Rather, Hines’ claim merely attempts to reargue the
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evidence. His claim also includes an allegation that the
district court improperly relied on the fact findings of the
Appeals Board. We review a district court’s findings of fact for
clear error. Vanderbilt v. Collins, 994 F.2d 189, 196 (5th Cir.
1993). We conclude that the district court did not abdicate its
role as factfinder, nor commit clear error in performing it.
CONCLUSION
Plaintiff’s claims of discrimination and retaliation in
violation of Title VII lack evidentiary support. Hines presented
no evidence that he was replaced by an individual outside the
protected class. Additionally, he presented no evidence, other
than mere allegations, that would create a genuine issue of
material fact regarding pretext or from which a factfinder could
reasonably infer discriminatory intent. Plaintiff also failed to
produce evidence to carry his burden of showing the causal link
between his filing of a racial harassment complaint and the
investigation ordered by Superintendent Donnelly. Plaintiff’s
claims brought against the Mississippi Department of Corrections
pursuant to §§ 1981, 1983, and 1985(3) are barred by the Eleventh
Amendment. Lastly, neither the Employee Appeals Board nor the
district court denied the plaintiff due process. Accordingly,
the judgment of the district court is AFFIRMED.
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