Filed: May 18, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 00-31313 (Summary Calendar) _ PATRICIA S. BRALY, M.D., wife of; DAVID R. POWERS, M.D., Plaintiffs-Appellants, versus MERVIN L. TRAIL, Etc.; ET AL., Defendants, MERVIN L. TRAIL, M.D.; ROBERT L. MARIER, M.D.; HARVEY A. GABERT, M.D.; KENNETH MCGRUDER, SR.; THE BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AGRICULTURAL AND MECHANICAL COLLEGE, Defendants-Appellees. _ PATRICIA S. BRALY, M.D., wife of; DAVID R. POWERS, M.D., Plainti
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 00-31313 (Summary Calendar) _ PATRICIA S. BRALY, M.D., wife of; DAVID R. POWERS, M.D., Plaintiffs-Appellants, versus MERVIN L. TRAIL, Etc.; ET AL., Defendants, MERVIN L. TRAIL, M.D.; ROBERT L. MARIER, M.D.; HARVEY A. GABERT, M.D.; KENNETH MCGRUDER, SR.; THE BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AGRICULTURAL AND MECHANICAL COLLEGE, Defendants-Appellees. _ PATRICIA S. BRALY, M.D., wife of; DAVID R. POWERS, M.D., Plaintif..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 00-31313
(Summary Calendar)
_______________________________
PATRICIA S. BRALY, M.D., wife of; DAVID R. POWERS, M.D.,
Plaintiffs-Appellants,
versus
MERVIN L. TRAIL, Etc.; ET AL.,
Defendants,
MERVIN L. TRAIL, M.D.; ROBERT L. MARIER, M.D.; HARVEY A. GABERT,
M.D.; KENNETH MCGRUDER, SR.; THE BOARD OF SUPERVISORS OF
LOUISIANA STATE UNIVERSITY AGRICULTURAL AND MECHANICAL COLLEGE,
Defendants-Appellees.
_________________________________________________
PATRICIA S. BRALY, M.D., wife of; DAVID R. POWERS, M.D.,
Plaintiffs-Appellants,
versus
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AGRICULTURAL
AND MECHANICAL COLLEGE; ET AL.,
Defendants,
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AGRICULTURAL
AND MECHANICAL COLLEGE; ROBERT L. MARIER; HARVEY A. GABERT, M.D.,
Defendants-Appellees.
_________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CV-2219-B and 00-CV-998-B)
_________________________________________________
May 18, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM*:
Plaintiffs-Appellants Patricia S. Braly, M.D., and David R.
Powers, M.D., husband and wife (collectively, “Plaintiffs”), appeal
the dismissal of claims they brought under Louisiana state law that
were consolidated with their federal sex discrimination suit.
Agreeing with the district court’s decision to dismiss the case, we
affirm.
I.
FACTS AND PROCEEDINGS
Patricia S. Braly, M.D., previously a professor at the
Louisiana State University School of Medicine in New Orleans
(“LSU”), and her physician husband bring a variety of claims
against Dr. Braly’s former employer. Most of them revolve around
a tenure dispute. Dr. Braly was employed by LSU from February
1994, when she left her position as a tenured professor at the
University of California in San Diego, until her resignation in
*
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.
2
April 2000, after she had filed this suit. In its letter offering
employment to Dr. Braly, LSU promised her the position of “Tenured
Professor and Director of Gynecologic/Oncology” at a guaranteed
salary of $250,000 per year for at least three years, plus other
consideration, including funds as needed for research, books, and
meetings and eligibility for an annual bonus. Dr. Braly’s 1994
Personnel Appointment Form reflects her status as “tenured.”
In July 1995, Dr. Braly’s status was changed retroactively
from tenured to a two-year term with tenure appointment review.1
In late 1996, she was told that her three-year probationary period
was nearing an end, and she would have to be reviewed for
appointment with tenure. In February 1997, Dr. Braly was given
official notice that she would not receive tenure, along with an
offer to continue to work for LSU for another year, until February
27, 1998. On January 15, 1998, she received another LSU letter,
this one notifying her that the school had reconsidered its
position and “determined that you are tenured, effective the date
of your appointment to LSUMC School of Medicine.” Her salary was
reduced in 1997, however, and again from March 1 to June 30, 1998.
Drs. Braly and Powers filed suit in federal court in July
1998, claiming sex discrimination under 42 U.S.C. §§ 1983, 1985,
and 2000(e), Title VII of the Civil Rights Act of 1964. Dr. Powers
1
Dr. Braly was unaware of this change, but states in her
deposition that she was told sometime in 1995 that she had
arrived on two-year probation, after which tenure would be
granted automatically.
3
alleged damages to his community property interests arising from
LSU’s acts against his wife. The Plaintiffs sought both monetary
damages and injunctive relief.
In February 2000, the district court granted in part the
Defendants’ motion for partial summary judgment. The district
court found, and the Plaintiffs conceded, that, under the Eleventh
Amendment to the U.S. Constitution, members of LSU Board of
Supervisors and the individual defendants in their official
capacities enjoy absolute immunity from suit in federal court for
monetary damages. All claims for money damages against them were
therefore dismissed. Also dismissed were all claims arising under
Title VII and 42 U.S.C. § 1985, and all claims arising under § 1983
for actions taken prior to July 27, 1997, as those claims had
prescribed. All of Dr. Powers’s claims were dismissed because,
among other reasons, Louisiana recognizes no community property
right in suits for employment discrimination or for defamation of
a spouse’s reputation. The sole surviving claims were those for
monetary damages and injunctive relief against four of the
individual defendants arising under § 1983 for actions taken after
July 28, 1997, including but not limited to salary and tenure
deprivation.
In May 2000, the district court partially denied without
prejudice the Defendants’ motion for summary judgment grounded in
Dr. Braly’s purported failure to allege a prima facie case of sex
discrimination or other violations of her constitutional rights
4
under § 1983. She opposed the motion under Fed. R. Civ. P. 56(f),
claiming that the Defendants had denied her adequate discovery.
The district court directed Dr. Braly to pursue appropriate means
of enforcing any delinquent discovery matters within forty-five
days; otherwise, the court could reconsider its denial of summary
judgment. The district court docket sheet reflects that the
Plaintiffs did not file a motion to compel and took no other action
until they filed an untimely memorandum in opposition to the
Defendants’ motion for summary judgment nearly four months later.
Meanwhile, in January 2000, the Plaintiffs filed a complaint
in Louisiana state court re-urging their federal discrimination and
defamation claims, as well as state law breach of contract and wage
claims.2 The Defendants removed the state suit to federal court,
and in August the cases were consolidated. The court granted the
Defendants’ unopposed motion for summary judgment and entered final
judgment dismissing all claims with prejudice. The Plaintiffs
timely perfected this appeal.
II.
ANALYSIS
The Plaintiffs state in their briefs that they have no
2
The Plaintiffs assert that this petition named only the
LSU Board of Supervisors, not the individual defendants named in
the federal suit. Although the caption of the state petition
indeed names only the board and its insurance company, two of the
four individual defendants named in the federal suit are among
the three individuals listed as parties in the text of the state
petition.
5
objection to the dismissal of all claims in the federal court suit,
and seek only remand to state court of their claims arising under
Louisiana law. They have abandoned any claim of error as to the
final judgment dismissing all of their federal claims with
prejudice.3 We therefore consider only the claims that the
Plaintiffs have briefed, and consider them only with regard to
state law causes of action.
A. Standard of Review
This case is on appeal from a dismissal on summary judgment.
Therefore, our review is de novo, applying the same standard as the
district court.4 A motion for summary judgment is properly granted
only if there is no genuine issue as to any material fact.5 An
issue is material if its resolution could affect the outcome of the
action.6 In deciding whether a fact issue has been created, we
must view the facts and the inferences to be drawn therefrom in the
light most favorable to the nonmoving party.7
The standard for summary judgment mirrors that for judgment as
3
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
4
Morris v. Covan Worldwide Moving, Inc.,
144 F.3d 377, 380
(5th Cir. 1998).
5
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
6
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
7
Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999).
6
a matter of law.8 Thus, we must review all of the evidence in the
record, but make no credibility determinations or weigh any
evidence.9 In reviewing all the evidence, we must disregard all
evidence favorable to the moving party that the jury is not
required to believe, and we give credence to the evidence favoring
the nonmoving party as well as to the evidence supporting the
moving party that is uncontradicted and unimpeached.10
B. Failure to Respond to Motion for Summary Judgment
In their first assignment of error, the Plaintiffs complain
that the district court dismissed their claims because they failed
to respond to the Defendants’ motion for summary judgment. It is
true that we have disapproved the automatic grant of dispositive
motions for failure to comply with local rules;11 however, the
district court did not grant summary judgment based solely on the
Plaintiffs’ failure to oppose it. The court specifically noted
that it granted the motion because it “is deemed to be unopposed,
and, further, it appear[s] to the Court that the motion has merit.”
By the time the district court granted summary judgment, the
case had been pending before it for more than two years. The court
8
Celotex, 477 U.S. at 323.
9
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000).
10
Id. at 150-51.
11
John v. State of La. (Bd. of Trs. for State Colls. &
Univs.), 757 F.2d 698, 709 (5th Cir. 1985).
7
already had issued two detailed orders governing various motions
and issues in the case, demonstrating an intimate familiarity with
the Plaintiffs’ claims and the facts of the case. Although a
relatively short period of time elapsed between (1) the removal
based on federal question jurisdiction and consolidation of the two
cases (both steps unopposed by Appellants) and (2) the dismissal of
all claims, the new state law claims raised in the second complaint
are few in number and easily resolved. The Defendants’ amended
motion for summary judgment adequately demonstrated an absence of
genuine issues of material fact regarding the new state law claims.
We disagree with the Plaintiffs’ contention that it is “obvious”
that the district court “did not consider all of the issues raised
in the State Court suit and the facts necessary to support those
issues.” We decline the Plaintiffs’ invitation to discourse
further on a party’s burden to respond to opposed motions under
Fed. R. Civ. P. 56. The first claim of error is denied.
C. Genuine Issues of Material Fact
In their second assignment of error, the Plaintiffs urge us to
reverse the summary judgment because they have raised genuine
issues of material fact in their claims arising under Louisiana
law. Perceiving none, we decline to do so.
In their second complaint, the Plaintiffs re-urged the federal
claims that they had brought in their first complaint, now
8
abandoned.12 They also alleged that the Defendants committed fraud;
caused Dr. Braly to resign and otherwise failed to perform their
contractual duties to her “in good faith,” as required by La. Civ.
Code Art. 1983; and failed to pay her wages and benefits, in
violation of La. Rev. Stat. 23:631, et seq.
The Plaintiffs have failed, however, to raise any question as
to whether Dr. Braly is owed back wages. Neither have they
produced evidence of any employment contract damages.13 LSU’s offer
letter to Dr. Braly clearly states that the Defendants promise her
a salary of $250,000, guaranteed for three years, plus a $35,000
“starting salary boost” in the first year. The Defendants, in
turn, produced undisputed payroll evidence showing that Dr. Braly
was paid $335,000 in 1994-95, $277,500 in 1995-96, and $270,036 in
1996-97. The Plaintiffs have produced no evidence that Dr. Braly
ever requested or applied for any of the other funds offered for
books, dues, travel, or research, although some research support
appears to have been provided to her. She also has failed to
substantiate her claims that her travel was unfairly restricted by
the departmental travel policy. In addition, Dr. Braly ultimately
12
Curiously, although the Plaintiffs repeatedly insist in
their briefs that they raised only state law claims in their
second complaint, they also added a new free speech/retaliation
claim apparently grounded in the First and Fourteenth Amendments
to the U.S. Constitution. We also deem this claim abandoned, as
the Plaintiffs seek reversal of summary judgment “as to the state
law claims asserted in the state court case.”
13
See La. Civ. Code Ann. art. 1997 (West 2001).
9
had her tenure restored ab initio after undergoing LSU’s grievance
process, and she produced no evidence to support her claims that
she lost other employment opportunities because of the tenure
dispute.
III.
CONCLUSION
In sum, we are convinced on de novo review of the record that
the Plaintiffs failed to produce any evidence supporting their
state law claims. Therefore, we affirm the district court’s
summary judgment dismissing all state and federal claims.
AFFIRMED.
10
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