     Case: 14-20302      Document: 00512868487         Page: 1    Date Filed: 12/12/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-20302                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        December 12, 2014
CHONDRA T. JOHNSON,                                                        Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellee

v.

PRAIRIE VIEW A & M UNIVERSITY,

                                                 Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-3606


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This is an interlocutory appeal of the district court’s refusal to dismiss
claims barred from federal adjudication by the Eleventh Amendment. We
reverse and remand with instructions to dismiss those claims.
       Chondra Johnson, a former Director of Recreation Sports, sued Prairie
View A&M University (“PVAMU”), alleging sex discrimination, harassment,
and retaliation in violation of Title VII, claims under the Family and Medical


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-20302
Leave Act (“FMLA”) 1 and the Texas Workers Compensation Act (“TWCA”).
PVAMU moved to dismiss the workers’ compensation and FMLA claims on
sovereign immunity grounds, and the other claims either for untimeliness or
failure to state a claim. Johnson’s pro se response included a motion to strike
PVAMU’s motion to dismiss because PVAMU did not comply with the
Southern District of Texas Local Rule 7. Her response also included a request
for appointment of counsel or, alternatively, to withdraw her suit without
prejudice. PVAMU noted in reply that Johnson failed to address any of the
arguments in its motion to dismiss and that Local Rule 7 does not apply to
dispositive motions under Rule 12(b)(1). The University advised the district
court, however, that it did not oppose her motion for dismissal without
prejudice.
       The district court issued a brief order denying the motion to dismiss and
stating that “the case, in its entirety, is not subject to dismissal.” The district
court did not consider PVAMU’s immunity claims and failed to mention
Johnson’s unopposed motion to dismiss without prejudice. 2
       PVAMU appeals the district court’s order to the extent it rejected the
University’s sovereign immunity claims. We have appellate jurisdiction over
this otherwise nonfinal decision under the collateral order doctrine. Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144,
113 S. Ct. 684, 687 (1993). “The question of whether state defendants are
entitled to sovereign immunity is… reviewed de novo.” Moore v. Louisiana Bd.
of Elementary & Secondary Educ., 743 F.3d 959, 962 (5th Cir. 2014) (citing
Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011)).



       1Although Johnson’s complaint recites the FMLA as a basis of jurisdiction, it does not
plead facts amounting to an FMLA cause of action.

       2   In her appellee’s brief, Johnson does not renew her motion to dismiss.
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                                 No. 14-20302
      Based on the Eleventh Amendment, “[a]bsent waiver, neither a State nor
agencies acting under its control” are amenable to suit in federal court. Puerto
Rico Aqueduct, 506 U.S. at 144, 113 S. Ct. at 687-88. PVAMU is a state
university and therefore partakes of the State’s sovereign immunity.            See
Nelson v. Univ. of Tex. at Dallas, 535 F.3d 318 (5th Cir. 2008); United States v.
Tex. Tech Univ., 171 F.3d 279, 289 n.14 (5th Cir. 1999); see also TEX. GOV’T
CODE § 572.002(10)(B). There is no indication in the TWCA that any state
agency like PVAMU has consented to be sued thereunder, let alone consented
to a federal forum. And this is not a case where the state has waived its
immunity defense or otherwise forfeited it by its conduct. See Lapides v. Board
of Regents, 535 U.S. 613, 122 S. Ct. 1640 (2002) (state forfeits federal-forum
immunity when it removes state-law claim to which it had consented to suit in
state court). Finally, Johnson’s FMLA claim is also barred by the doctrine of
state sovereign immunity, Coleman v. Court of Appeals, 132 S. Ct. 1327, 1332
(2012). The University’s sovereign immunity as to the TWCA and FMLA
claims is perfectly intact, and the district court erred in refusing to dismiss
those claims under Rule 12(b)(1) for lack of jurisdiction.
      For these reasons, we VACATE the district court’s order insofar as it
denies PVAMU’s motion to dismiss the TWCA and FMLA claims and
REMAND with instructions to dismiss those claims.




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