SARAH S. VANCE, District Judge.
Defendants, the Board of Supervisors of the University of Louisiana System (Southeastern University), Eric Johnson, Dr. Lynette Ralph, and Victor Pregeant, move for summary judgment on plaintiff Dr. Michael Webster's claims for prospective relief under the Americans with Disabilities Act.
Plaintiff filed this action alleging violations of the Americans with Disabilities Act of 1990 ("ADA") and the ADA Amendments Act of 2008. Plaintiff sued the Board of Supervisors of the University of Louisiana System; Eric Johnson, in his personal capacity and official capacity as Sims Library Director at Southeastern University ("SLU"); Lynette Ralph, in her personal capacity and official capacity as Assistant Sims Library Director at SLU; and Victor Pregeant, in his personal capacity and official capacity as Compliance Officer for Equal Employment Opportunity/Americans with Disabilities Act at SLU.
Plaintiff alleged the following facts. In 2007, SLU hired him as a Collection Development Librarian. In early 2008, he informed Ralph, his immediate supervisor, that he suffered from manic and major depression and that, despite taking medication, he might occasionally behave irrationally. On June 19, 2009, while suffering a manic episode, plaintiff sent Ralph an e-mail falsely accusing Johnson of sexual harassment. The next day, realizing what he had done, plaintiff sent Ralph an e-mail explaining that the accusation was caused by a manic episode and asking her to delete and disregard it.
On or about July 6, 2009, Ralph and Johnson informed plaintiff that SLU would not renew his contract and that his employment would cease on January 6, 2010. In the meantime, he would be demoted from Collection Development Librarian to Special Projects Librarian. A week later, plaintiff filed a complaint with Pregeant alleging harassment based on his disability and requesting an accommodation. He alleges that Pregeant refused to investigate his complaint because plaintiff was unable to provide records of his disability from a medical specialist.
In August 2009, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). The EEOC later informed him that SLU had agreed not to effectuate his termination until the EEOC completed its investigation. Nevertheless, before the EEOC investigation concluded, SLU terminated plaintiff's employment on June 30, 2010, with an effective date of termination of July 14, 2010. According to plaintiff, he was escorted off campus and told he was no longer required to report to work on July 12, 2010, two days before his official termination date. Plaintiff alleges that from July 2009 through his date of termination, he sustained public ridicule and embarrassment for his disability and the side effects of his medication.
On September 28, 2011, the EEOC issued its determination finding reasonable cause to believe that SLU terminated Webster because of his disability. The EEOC engaged the parties in conciliation efforts, which proved unsuccessful. On September 9, 2013, the Department of Justice issued plaintiff a right to sue letter. Plaintiff brought this action on December 9, 2013.
Following a motion to dismiss, the Court dismissed plaintiff's claims for money damages against SLU and against Johnson, Ralph, and Pregeant in their official capacities, and plaintiff's claims against Johnson, Ralph, and Pregeant in their personal capacities. The Court permitted plaintiff to proceed with his claims for prospective declaratory and injunctive relief against Johnson, Ralph, and Pregeant in their official capacities.
On March 16, 2015, plaintiff filed a motion for leave to amend his complaint to add a claim under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., and to add or clarify a claim under Louisiana state obligations law. The Magistrate Judge granted plaintiff's motion to add a section 504 claim under the Rehabilitation Act as to the Board of Supervisors, but denied the motion in all other respects. On review of the Magistrate Judge's order, this Court reversed the Magistrate Judge's decision in part and denied plaintiff's motion for leave to amend his complaint to add a claim under section 504 of the Rehabilitation Act.
The gravamen of plaintiff's claim is reinstatement, but plaintiff also seeks front pay in lieu of reinstatement. Defendants move for summary judgment, contending that, because reinstatement is not feasible, and front pay is barred by the Eleventh Amendment, plaintiff's claim should be dismissed.
Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-399 (5th Cir. 2008). The Court must draw reasonable inferences in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth `ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 10B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 2738 (2d ed. 1983)).
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence that would entitle it to a directed verdict if the evidence went uncontroverted at trial." Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quotation marks removed). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324.
The nonmovant may not rest upon the pleadings but must identify specific facts that establish a genuine issue for trial. Id.; see also Little, 37 F.3d at 1075 ("Rule 56 `mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'") (quoting Celotex, 477 U.S. at 322).
Plaintiff worked at Sims Library at SLU from November 2007 through July 14, 2010. Initially, he worked as the Collection Development Librarian. As reflected in the job posting for this position, plaintiff's responsibilities included evaluating and developing the library's collection; supervising the acquisitions unit; overseeing the departmental liaison program; recommending fund allocation for the purchase of library materials; selecting and evaluating appropriate vendors; approving plans, de-selection, and gifts; establishing and maintaining effective communication with academic departments; and serving on library and university committees.
In July 2009, shortly after an incident in which plaintiff, during an alleged manic episode, falsely accused the library director of sexual harassment, the library transitioned him to Special Projects Librarian.
When plaintiff served as Collection Development Librarian, three library specialists worked under him.
Plaintiff contends that the responsibilities of his former position as Collection Development Librarian and those of the Head of Acquisitions are "essentially the same."
Defendants contend that reinstatement is not feasible because plaintiff's former position no longer exists, and his former responsibilities have been allocated among existing Sims Library staff. See Woodhouse v. Magnolia Hosp., 92 F.3d 248, 257 (5th Cir. 1996) (holding that reinstatement is not appropriate when the plaintiff's former position no longer exists) (citing Ray v. Iuka Special Mun. Separate Sch. Dist., 51 F.3d 1246, 1255 (5th Cir. 1995)).
"Where feasible, reinstatement rather than front pay is the preferred remedy for a victim of employment discrimination." Johnson v. Chapel Hill Indep. Sch. Dist., 853 F.2d 375, 382 (5th Cir. 1988). Several factors courts consider in determining whether reinstatement is feasible are (1) "whether positions now exist comparable to the plaintiff's former position and whether reinstatement would require an employer to displace an existing employee," (2) "whether the plaintiff has changed careers," and (3) "whether animosity exists between the plaintiff and his former employer."
In Palasota, the Fifth Circuit held that reinstatement was not required when no position comparable to the plaintiff's former position existed, and rehiring plaintiff "would require either termination of another employee or a decrease in each current employee's sales territory and salary." 499 F.3d at 489. There, the employer indicated that it had not hired any new employees for the type of position at issue in several years, did not intend to hire more, and that reductions were likely in the future. Id. The Fifth Circuit also reasoned that the lack of openings resulted from "changes in the market and corporate management structure over the last two decades," and not from "employer recalcitrance." Id. at 490. Further, the court found it significant that the employer could no longer guarantee the plaintiff the same salary, that plaintiff was not interested in returning at a lower salary, and that plaintiff, who had been out of the industry for years, had recently opened his own business. Id. Finally, the record suggested "some lingering animosity between the parties." Id.
Even if reinstatement would require displacement of an existing employee, reinstatement is not necessarily inappropriate. As the Fifth Circuit has recognized:
Reeves v. Claiborne Cnty. Bd. of Educ., 828 F.2d 1096, 1102-03 (5th Cir. 1987). "While reinstatement may displace an innocent employee, the `[e]nforcement of constitutional rights [may have] disturbing consequences. Relief is not restricted to that which would be pleasing and free of irritation." Id. (citing Sterzing v. Fort Bend Ind. Sch. Dist., 496 F.2d 92, 93 (5th Cir. 1974); Bueno v. City of Donna, 714 F.2d 484, 496 (5th Cir. 1983)). In a case several years later, the Fifth Circuit upheld the district court's reinstatement of the plaintiff to a position then held by another employee. Brunnemann v. Terra Intern. Inc., 975 F.2d 175, 180 (5th Cir. 1992); see also Fuhr v. Sch. Dist. of City of Hazel Park, 364 F.3d 753, 761-62 (6th Cir. 2004) (upholding district court's order of instatement even though it required bumping an existing employee); Feldman v. Phila. Housing Auth., 43 F.3d 823, 838 (3d Cir. 1994) (holding that reinstatement is an available remedy even when a third person occupies plaintiff's former position). Still, the Fifth Circuit more recently stated that "except under extraordinary circumstances . . ., innocent incumbents may not be displaced." Palasota, 499 F.3d at 489 (citing Gamble v. Birmingham S. R. Co., 514 F.2d 678, 686 (5th Cir. 1975) (stating district court has broad remedial powers to eliminate present effects of past systemic racial discrimination)).
The Court finds no genuine issue precluding a finding that plaintiff's former position no longer exists. Here, SLU eliminated funding for plaintiff's former position, Collection Development Librarian, in 2010,
In addition, that the library director now oversees collection development and the library liaison program, as well as creation of accreditation reports, which were significant components of plaintiff's former job, militates in favor of the Court's finding that the positions are not comparable.
In concluding that reinstatement is not viable, the Court also notes that the position of Head of Acquisitions is currently occupied, filled over two years after plaintiff's termination, and that the library now operates with far less staff. Under these circumstances, reinstatement is not appropriate. See Palasota, 499 F.3d at 489 (finding reinstatement inappropriate where it would require either termination of another employee or a decrease in each current employee's sales territory and salary).
Accordingly, the Court finds that reinstatement is not available because no comparable position exists to which plaintiff could be reinstated. See Woodhouse, 92 F.3d at 257 (holding that reinstatement is not appropriate when plaintiff's former position no longer exists).
When reinstatement is not feasible, front pay is the appropriate remedy. Julian v. City of Hous., Tex., 314 F.3d 721, 728 (5th Cir. 2002). Front pay "compensates the plaintiff for lost income from the date of judgment to the date the plaintiff obtains the position she would have occupied but for the discrimination." Floca v. Homcare Health Svs., Inc., 845 F.2d 108, 112 (5th Cir. 1988); see also Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992) ("Front pay is awarded to compensate the plaintiff for lost future wages and benefits.").
Defendants contend that front pay is barred by the Eleventh Amendment because it amounts to an award of money from the state treasury. Sovereign immunity prevents citizens from bringing suit in federal court against states of the United States that have not consented to the suit. U.S. Const. amend. XI; Pennhurst State Sch. & Hosp., 465 U.S. 89, 97-103 (1984); Hans v. Louisiana, 134 U.S. 1, 21 (1890). This rule applies to state agencies such as the Board of Supervisors of the University of Louisiana System. See Rushing v. Bd. of Supervisors of Univ. of La. Sys., No. 06-623-C, 2008 WL 4200292, at *3 (M.D. La. Sept. 11, 2008) ("The Board of Supervisors for the University of Louisiana System, as the governing body for Southeastern Louisiana University, is an agency of the State of Louisiana and has Eleventh Amendment immunity from suit against it in federal court."). In addition, lawsuits against state officials in their official capacities are typically suits against the state itself and cannot be brought absent a sovereign-immunity exception. See Kentucky v. Graham, 473 U.S. 159, 165 (1985).
The doctrine of Ex parte Young serves as an exception to the rule that official capacity suits represent suits against the state. Ex parte Young, 209 U.S. 123 (1908). This exception holds that a suit is not barred by sovereign immunity when it is brought against state officials to enjoin an ongoing violation of federal law. See id. at 155-56; Meza v. Livingston, 607 F.3d 392, 411-12 (5th Cir. 2010); Am. Bank & Trust Co. of Opelousas v. Dent, 982 F.2d 917, 920 (5th Cir. 1993). The exception may be maintained "because the state cannot confer authority on its officers to violate the Constitution or federal law." Dent, 982 F.2d at 920-21 (emphasis in original); Ex parte Young, 209 U.S. at 159. Accordingly, "[o]nly for the purposes of the Eleventh Amendment are official capacity actions for prospective relief not treated as actions against the state." McCarthy v. Hawkins, 381 F.3d 407, 414 (5th Cir. 2004) (quoting Graham, 473 U.S. at 167 n.14) (ellipsis and internal quotation marks omitted). The exception applies only to suits that seek prospective relief that is rooted in federal authority; it does not apply to actions that seek monetary relief for past harms or that pursue injunctive relief on the basis of state law. See Edelman v. Jordan, 415 U.S. 651, 668-69 (1974); Pennhurst, 465 U.S. at 106.
To determine whether the exception applies, "a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." See Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (O'Connor, J., concurring in part and concurring in the judgment)) (internal quotation marks and brackets omitted). Typically, Ex parte Young is adequately invoked when a plaintiff alleges an ongoing violation of federal law. See Coeur d'Alene Tribe, 521 U.S. at 281 ("An allegation of an ongoing violation of federal law where the requested relief is prospective is ordinarily sufficient to invoke the Young fiction."); see also McCarthy, 381 F.3d at 415-16.
Here, plaintiff seeks front pay in lieu of reinstatement. Front pay is a form of prospective relief, see Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir. 1990), but "[i]f the prospective relief sought is the functional equivalent of money damages, i.e., `[i]t is measured in terms of a monetary loss resulting from a past breach of a legal duty,' Ex parte Young does not apply," Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999) (quoting Edelman, 415 U.S. at 669). Many courts have recognized that front pay is barred by the Eleventh Amendment in cases such as here, where the award would be paid with funds from the state treasury. For example, the Eighth Circuit in Campbell v. Ark. Dep't of Corr., 155 F.3d 950, 962 (8th Cir. 1998), held that "front pay is not analogous to the prospective relief permitted under Ex parte Young because it `must be paid from public funds in the state treasury.'" Id. at 962 (quoting Edelman, 415 U.S. at 663). As a result, the Eighth Circuit held, "[t]he alternative front pay award is [] barred by the eleventh amendment." Id. Both the Third and Sixth Circuits have reached the same conclusion. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698 (3d Cir. 1996) (finding "`front pay' claims to be neither prospective nor equitable" and therefore barred by the Eleventh Amendment); Freeman v. Mich. Dept. of State, 808 F.2d 1174, 1179 (6th Cir. 1987) (holding that front pay is barred by the Eleventh Amendment because "any payment of these claims would come from the state treasury"). Other district courts in this district and within the Fifth Circuit have reached the same conclusion. See Antoniewicz v. Univ. of Tex. Health & Sci. Ctr. at Hous., Civ. A. No. H-14-2083, 2015 WL 3771007, at *11 (S.D. Tex. June 17, 2015) ("[T]he only forward-looking request is `front pay' or damages, which are not allowed against the state under the Eleventh Amendment."); Dube v. Tex. Health & Hum. Servs. Comm., Civ. A. No. SA-11-CV-354-XR, 2011 WL 3902762, at *3 (W.D. Tex. Sept. 6, 2011) (dismissing "Plaintiff's request for front pay under the ADA as barred by the Eleventh Amendment"); Pechon v. La. Dep't of Health & Hosps., Civ. A. No. 09-0664, 2009 WL 2046766, at *10 (E.D. La. July 14, 2009) ("[I]t is well-settled that compensatory damages in the form of lost future wages or front-pay, are not prospective or recoverable in an official-capacity action brought pursuant to § 1983."); Landesburg-Boyle v. Louisiana, Civ. A. No. 03-3582, 2004 WL 1516823, at *5 (E.D. La. July 2, 2004) (dismissing plaintiff's claim for "future lost wages and benefits" against defendants in their official capacities as barred by the Eleventh Amendment); see also Malkan v. Mutua, No. 12-CV-236-A, 2012 WL 4722688, at *8 (W.D.N.Y. Oct. 3, 2012) (holding that "front pay is unavailable as an alternative to reinstatement in an official-capacity suit against a state official where it will be paid from a state treasury"); Huang v. Rector & Visitors of the Univ. of Va., No. 3:11-cv-00050, 2013 WL 865845, at *13-14 (W.D. Va. Mar. 7, 2013) (holding that "the potential alternative of front pay is barred by the Eleventh Amendment").
Recognizing this consensus, plaintiff reasserts the argument that the ADA Amendments Act places the ADA outside of Eleventh Amendment immunity. The Court has already rejected this argument.
Plaintiff also contends that because SLU and the EEOC agreed in January 2010 that SLU would not terminate plaintiff until the EEOC concluded its investigation and rendered a determination in favor of SLU, plaintiff is entitled to wages he would have earned from the time of his termination to the conclusion of the EEOC's investigation. Analogizing the alleged agreement between defendants and the EEOC, plaintiff cites two cases in which a state was required to pay a plaintiff's salary for the period following an order of reinstatement but before actual reinstatement. See Barnes v. Bosley, 828 F.2d 1253 (8th Cir. 1987); Lee v. Iowa, 844 N.W.2d 668 (Iowa 2014). There, the courts categorized the relief sought—wages between the reinstatement order and actual reinstatement—as prospective, and, thus, not barred by Ex parte Young. Plaintiff's reliance on these cases is unavailing because no reinstatement order exists that could render the relief sought by plaintiff prospective under the authorities cited.
Accordingly, plaintiff's claim for front pay is barred by the Eleventh Amendment.
Plaintiff asserts that even if the Court grants defendants' motion for summary judgment, he will still maintain a state-law contract claim, a punitive damages claim against the individually-named defendants in their individual capacities, and a claim under section 504 of the Rehabilitation Act of 1973.
As to the contract claim, the Magistrate Judge rejected plaintiff's assertion of a state-law contract claim as barred by sovereign immunity.
Likewise, this Court already dismissed plaintiff's claims against the individually-named defendants in their individual capacities, and, therefore, plaintiff cannot maintain a claim for punitive damages against them.
As to plaintiff's Rehabilitation Act claim, by separate order, the Court has denied plaintiff leave to amend his complaint to add a claim under section 504 of the Rehabilitation Act because the claim is time barred and therefore futile.
For the foregoing reasons, the Court GRANTS defendants' motion for summary judgment.
