Mozaina Kobaisy v. University of Mississippi, et a

Case: 14-60651 Document: 00513176948 Page: 1 Date Filed: 09/01/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60651 United States Court of Appeals

Summary Calendar Fifth Circuit

FILED

September 1, 2015

MOZAINA KOBAISY, Lyle W. Cayce

Clerk

Plaintiff - Appellant

v.

UNIVERSITY OF MISSISSIPPI; IKHLAS KHAN; LARRY WALKER;

BEVERLY M. BUTTS; BARBARA L. WELLS,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:11-CV-151

Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Mozaina Kobaisy (Kobaisy) appeals the district

court’s grant of summary judgment in favor of Defendants-Appellants on her

Section 1983 claim. We affirm.

* 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.

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No. 14-60651

I

Kobaisy, a native of Syria and naturalized United States citizen, was

formerly a research scientist at the National Center for Natural Products

Research (Center) at the University of Mississippi (University). Two

Defendants in this case, Dr. Larry Walker (Dr. Walker) and Dr. Ikhlas Kahn

(Dr. Kahn), encouraged Kobaisy to apply for this position. Dr. Kahn

recommended the University hire Kobaisy and was ultimately her direct

reporting supervisor. Kobaisy was hired as a full-time, permanent, non-

tenured staff member. One condition on Kobaisy’s employment was that the

Center continue to receive external funding for her position.

As part of her position, Kobaisy was required to perform “wet” laboratory

work, such as isolating and purifying natural products. In January 2006,

Kobaisy was injured by an explosion while performing an experiment, which

resulted in her physical and mental impairment, including the loss of an eye.

Kobaisy is now permanently partially disabled and can no longer do “wet”

laboratory work. Kobaisy was placed on paid leave by the University.

The United States Department of Agriculture (USDA) and the Food and

Drug Administration (FDA) financially support the Center with grants and

contracts. FDA funds are generally awarded to further specific goals, while

USDA funds generally support the Center’s basic infrastructure. Kobaisy was

formerly paid out of FDA and USDA funds, but after the accident, the

University changed the source of funding for Kobaisy’s position so she could be

paid completely out of general USDA funds. Several co-workers donated their

personal leave to support Kobaisy, including Dr. Kahn, who donated 160 hours.

When her donated leave expired in August 2006, the University placed Kobaisy

on leave without pay. Somehow, Kobaisy managed to remain on the

employment roll as an employee for several years, although she did not return

to work and did not receive financial support from the University. Kobaisy had

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no further contact with Dr. Kahn or Dr. Walker from August 2006 to December

2010, when she requested to return to her former position. The University

advised Kobaisy that her position was no longer available and denied her

request.

Kobaisy then filed a charge with the Equal Employment Opportunity

Commission (EEOC) alleging discrimination under the Americans with

Disabilities Act (ADA). The EEOC issued Kobaisy a right to sue letter, and

she filed suit in federal district court, asserting violations of 42 U.S.C. § 1983,

Title VII of the Civil Rights Act of 1964, and the ADA, and a civil conspiracy

claim under state law. The district court granted Defendants’ motion to

dismiss Kobaisy’s money damages claim under § 1983 and the ADA because

the University and its employees acting in their official capacities were entitled

to sovereign immunity under the Eleventh Amendment. The court also found

the individual defendants entitled to qualified immunity for acting in their

individual capacities, dismissed the Title VII claim for national origin

discrimination, and dismissed the state law conspiracy claim against

Defendants in their official capacities.

No claims remained against the University, and the individual

Defendants then filed a motion for summary judgment on Kobaisy’s remaining

claims: (1) injunctive relief to regain employment based on a § 1983 claim of

national origin discrimination against each individual Defendant; and (2) state

law civil conspiracy against individual Defendants in their individual

capacities. The district court granted this motion, 1 and Kobaisy appealed.

1 The district court dismissed the § 1983 claim on the merits and declined jurisdiction

over the state law civil conspiracy claim as all federal claims had been dismissed before trial,

dismissing the state law claim without prejudice. See Brookshire Bros. Holding, Inc. v. Dayco

Prods., Inc., 554 F.3d 595, 601−02 (5th Cir. 2009).

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II

The only issue on appeal is whether the district court properly granted

summary judgment on Kobaisy’s claim for national origin discrimination by

the individual Defendants for failing to reinstate Kobaisy. We review a grant

of summary judgment de novo, applying the same standards as the district

court. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012).

Summary judgment shall be granted “if 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). “We construe all facts and inferences

in the light most favorable to the nonmoving party when reviewing grants of

motions for summary judgment.” Hernandez, 670 F.3d at 650 (citation

omitted). As the burden of production at trial would be on Kobaisy,

“Defendants need only demonstrate an absence of evidentiary support in the

record for her case.” Salcido v. Univ. of S. Miss., 557 F. App’x 289, 292 (5th

Cir. 2014) (per curiam). We “may affirm a grant of summary judgment on any

grounds supported by record and presented to the district court.” Id.

(alteration omitted) (citing Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir.

2008)).

Section 1983 claims against state officials for prospective injunctive

relief under § 1983, such as Kobaisy’s request for reinstatement, are not barred

by sovereign immunity. Nelson v. Univ. of Tex. at Dallas, 535 F.3d 318, 324

(5th Cir. 2008) (“[A] request for reinstatement is sufficient to bring a case

within the Ex parte Young exception to Eleventh Amendment immunity, as it

is a claim for prospective relief designed to end a continuing violation of federal

law.”); Yul Chu v. Miss. State Univ., 901 F. Supp. 2d 761, 775 (N.D. Miss. 2012).

Plaintiffs bringing § 1983 claims must “(1) allege a violation of a right secured

by the Constitution or laws of the United States and (2) demonstrate that the

alleged deprivation was committed by a person acting under color of state law.”

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Doe ex rel. Magee v. Covington Cnty. Sch. Dist., 675 F.3d 849, 854 (5th Cir.

2012) (en banc).

Employment discrimination claims brought under Section 1983 “are

analyzed under the evidentiary framework applicable to claims arising under

Title VII of the Civil Rights Act of 1964,” Lawrence v. Univ. of Tex. Med. Branch

at Galveston, 163 F.3d 309, 311 (5th Cir. 1999) (per curiam), and, in the

absence of direct evidence of discrimination, we analyze the claim under the

familiar burden-shifting framework established in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). Griffin v. Kennard Indep. Sch. Dist., 567 F.

App’x 293, 294 (5th Cir. 2014) (per curiam). A prima facie case of

discrimination requires the plaintiff to show: “(1) [s]he is a member of a

protected class, (2) [s]he was qualified for the position at issue, (3) [s]he was

the subject of an adverse employment action, and (4) [s]he was treated less

favorably because of h[er] membership in that protected class than were other

similarly situated employees who were not members of the protected class,

under nearly identical circumstances.” Lee v. Kansas City S. Ry. Co., 574 F.3d

253, 259 (5th Cir. 2009). Once a prima facie case is established, “an inference

of intentional discrimination is raised and the burden of production shifts to

the employer, who must offer an alternative non-discriminatory explanation

for the adverse employment action.” Id. Once this reason is shown, the burden

shifts back to the employee to raise a genuine dispute of material fact that the

proffered reason is merely pretextual. Id. While the burden of production

shifts, the ultimate burden of persuasion at all times remains with the

employee. See Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

III

The district court first dismissed Kobaisy’s claims against three of the

individual Defendants—Dr. Walker, Beverly Butts, and Barbara Wells—

because Kobaisy testified that she had no information that any of these

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individuals discriminated against her based on her national origin. Next, the

district court determined even despite this admission, Kobaisy had no viable

federal claims against any individual Defendant, and, as such, each were

entitled to summary judgment. The district court found that Kobaisy could not

establish a prima facie case nor show that the proffered legitimate, non-

discriminatory reasons for the failure to reinstate Kobaisy were pretextual.

Regarding the prima facie case, the district court noted Kobaisy was not

qualified in 2010 for her job because she can no longer do “wet” laboratory

work, and there was no position that would not require “wet” laboratory work

available. 2 The district court also found that Kobaisy suffered no adverse

employment action because the funds for her position were no longer available

and the work required by her position had been completed. Next, the district

court found Kobaisy could not identify a proper comparator because she could

not point to a research scientist of differing national origin 3 on leave without

pay for a number of years that received more favorable treatment than

Kobaisy. Kobaisy also did not identify a research scientist of differing national

origin that replaced her in her former position or that was treated more

favorably than Kobaisy in any manner.

The district court found the justifications for Kobaisy’s termination—

that Kobaisy could not perform the essential functions of a research assistant

and the funds for Kobaisy’s position were no longer available—to be legitimate,

non-discriminatory reasons for the failure to reinstate Kobaisy. Kobaisy could

not show that these were pretextual. Further justifying its holding, the district

court found that the “same actor inference”—which infers a lack of

2 The district court further stated that, while the University could be charged with a

duty to accommodate Kobaisy under the ADA, that claim had been dismissed already for

Kobaisy’s failure to state a claim.

3 Interestingly, Kobaisy does not argue that she suffered discrimination because she

was Syrian, but rather because she was not Indian.

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discrimination—was available to Dr. Kahn because he was the individual

responsible for Kobaisy’s initial hiring and subsequent failure to reinstate. See

Spears v. Patterson UTI Drilling Co., 337 F. App’x 416, 421−22 (5th Cir. 2009).

We agree with the district court on each point. Accordingly, we AFFIRM

the district court’s grant of summary judgment and adopt its reasoning in full.

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