                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                        F I L E D
                                In the                                  August 19, 2005
          United States Court of Appeals                             Charles R. Fulbruge III
                      for the Fifth Circuit                                  Clerk
                          _______________

                            m 03-30169
                          _______________




                      IMOGENE KHAN, ET AL.,

                                               Plaintiffs,

                     RICHARD EUGENE EARLY,

                                               Plaintiff-Appellee,

                              VERSUS

     SOUTHERN UNIVERSITY & AGRICULTURAL & MECHANICAL
               COLLEGE BOARD OF SUPERVISORS;
BENJAMIN PUGH; GRADY MORRIS; JEANETTE WILLIAMS; SAM GILLIAM;
                       JAMES BROWN,
             INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
   AS CHANCELLOR OF THE SOUTHERN UNIVERSITY-SHREVEPORT CAMPUS;
                         JUANITA MORRIS,

                                               Defendants-Appellants.


                    _________________________

              Appeal from the United States District Court
                 for the Western District of Louisiana
                           m 5:00-CV-255
                ______________________________
Before GARWOOD, SMITH, and CLEMENT,                       Early as Assistant Chief.2 Pugh returned Early
  Circuit Judges.                                         to regular duty in November 1999.

JERRY E. SMITH, Circuit Judge:*                              Defendant Grady Morris also applied for
                                                          the position of Police Chief. He was a subor-
   Stating, without explanation, only that there          dinate Police Officer II under Khan and Early
are genuine issues of material fact, the district         until he was promoted to Interim Chief in No-
court denied the defendants’ motion for                   vember 1999 and permanent Chief in June
summary judgment and to dismiss for failure to            2000.3 He was married to Juanita Morris, a
state claims upon which relief may be granted.            classified civil service clerical worker.
Defendants appeal the interlocutory order be-
cause it denies qualified and sovereign                     When Southern appointed Khan Interim
immunity. We affirm in part, reverse in part,             Chief, Early supported her efforts and directly
dismiss in part, and remand.

                        I.                                   2
                                                               According to Early’s brief, he received an
                        A.                                associate degree from Southern in 1997 and a
   The former plaintiff, Imogene Khan, began              bachelors degree from Louisiana Tech in 1998. He
working in the police department of Southern              was also completing an MBA program at Central
UniversitySSShreveport (“Southern”) in                    Michigan University. He served as a Southern
1990.1 While at Southern, Khan was both the               police officer, and his evaluations were consistently
only white and the only female member of the              strong.
Southern police force. Sam Gilliam, who
                                                             3
served briefly as interim Chancellor until April                Early alleges the following facts in his brief:
1, 1999, appointed her to the interim position            that he scored several points higher than Khan on
of Lieutenant/Chief in January 1999.                      the civil service exam, but she had more tenure;
                                                          that Morris’s performance history was inferior to
                                                          that of Khan, whose evaluations reflected her supe-
    During her tenure as interim chief, Khan
                                                          rior record; and that Morris was permitted to resign
applied for permanent appointment to that po-             rather than face disciplinary action for un-
sition. She was the most senior member of the             acceptable conduct. Morris also worked at the
force, and her performance evaluations were               Caddo Parish Sheriff’s Office as a corrections of-
exemplary. When Khan became Chief on                      ficer and a communications/radio room operator;
January 6, 1999, Ben Pugh, Southern’s Vice-               he resigned after being recommended for termina-
Chancellor, temporarily appointed Richard                 tion. He was subject to disciplinary action for
                                                          sleeping on the job and being away from his work
                                                          area on repeated occasions. He had two prior ar-
                                                          rests: one for false imprisonment that was ex-
   *                                                      punged in 1997, and one for issuing worthless
    Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published        checks.
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.                   On his civil service application for police chief,
                                                          Morris apparently responded that he had never
   1
    Khan settled claims against the defendants; we        resigned from a job to avert termination. Southern
discuss facts surrounding her claims only to the          learned that he had falsified his application in that
extent they are material here.                            respect.

                                                      2
associated with her. Early made his support               Amendment and qualified immunity claims.
for her public and also disclosed that he had             They devote most of their argument to the
observed race and sex discrimination against              substantive merits of the various claims. To
her.                                                      the extent that this appeal is from an interlocu-
                                                          tory order, we consider only those issues eli-
   Early alleges that he suffered severe retalia-         gible for interlocutory review.
tion as a result of his support for Khan by
seeking to place him on the midnight shift and               Generally we do not have jurisdiction over
accusing him of stealing computers. Southern              denials of motions to dismiss or motions for
authorities ultimately divested Early and Khan            summary judgment, because such pretrial or-
of certain supervisory responsibilities, includ-          ders are not final decisions for purposes of 28
ing the ability to discipline inferior officers and       U.S.C. § 1291, which provides that courts of
perform background checks.                                appeals have jurisdiction over appeals from
                                                          final decisions of the district courts. There
   Khan and Early took sick leave in October              are, however, exceptions for certain types of
1999, citing the stress and harassment they               immunity rulings.
were experiencing. Early claims that Southern
officials made it difficult for him to obtain his                                II.
pay by questioning his exercise of sick leave.                                   A.
Southern terminated Early in March 2000, and                 The district court denied defendants’ mo-
Khan in May 2000.                                         tion to dismiss and motion for summary judg-
                                                          ment that were based on sovereign immunity.4
   In December 1999 Khan signed EEOC                      The collateral order doctrine furnishes us with
questionnaires containing specific claims of              jurisdiction over an interlocutory appeal from
discrimination. She signed a formal charge                a denial of a summary judgment motion as-
that the EEOC sent to Southern in November                serting sovereign immunity.5 The defendants
of 2000. In September 2001 the EEOC issued                contend that the denial of the motions to dis-
Khan a right to sue letter.                               miss and for summary judgment was error.
                                                          This is a legal question that we review de
                       B.                                 novo. See Koehler v. United States, 153 F.3d
   Early makes a variety of allegations against           263, 265 (5th Cir. 1998).
Southern and against its officers in their offi-
cial and personal capacities. These allegations
include title VII claims based on race and sex
discrimination, title VII claims based on race               4
                                                                The district court actually refused to dismiss
and sex retaliation, 42 U.S.C. § 1981 claims              all claims insofar as the defendants moved to dis-
based on racial discrimination and retaliation,           miss them based on sovereign immunity. We mere-
a variety of 42 U.S.C. § 1983 claims, 42                  ly identify title VII and § 1983 because they are the
U.S.C. § 1985 conspiracy claims, and several              only two issues sufficiently briefed such that we
42 U.S.C. § 1986 claims.                                  may render an informed judgment.
                                                             5
                                                              See P.R. Aqueduct & Sewer Auth. v. Metcalf
   The defendants challenge the order denying
                                                          & Eddy, Inc., 506 U.S. 139, 144-45 (1993); Mc-
their motion to dismiss. They premise appel-              Carthy ex rel. Travis v. Hawkins, 381 F.3d 407,
late jurisdiction for this issue on Eleventh              411-12 (5th Cir. 2004).

                                                      3
                      B.                                    Louisiana law provides that “[n]o suit against
    Southern maintains that there is an Eleventh            the state or a State agency or political subdivi-
Amendment sovereign immunity bar to Early’s                 sion shall be instituted in any court other than
title VII claims. The Supreme Court rejected                a Louisiana court.” LA. R.S. 13:5106. More-
Southern’s position long ago, holding that a                over, we are not permitted to interpret waiver
private citizen can sue a state for title VII               of immunity in state law courts as a waiver of
damages in federal court.6                                  immunity in federal courts.9 The inquiry, how-
                                                            ever, does not end there.
     The two sides devote considerable space in
their briefs to whether Louisiana has waived its               This court takes a case-by-case approach to
sovereign immunity. This argumentation                      determining whether a state is the real party in
entirely misses the mark, for private citizens              interest in suits brought against entities that
may pursue title VII actions in federal court               appear to be alter egos of that state. See Rich-
not because Louisiana has waived sovereign                  ardson v. S. Univ., 118 F.3d 450, 452 (5th Cir.
immunity, but because Congress has abrogated                1997). A federal court “must examine the par-
it.7                                                        ticular entity in question and its powers and
                                                            characteristics as created by state law to deter-
                      C.                                    mine whether the suit is in reality a suit against
   Congress may abrogate Eleventh Amend-                    the state itself.” Laje v. R.E. Thomason Gen.
ment immunity, or states may waive it, but in               Hosp., 665 F.2d 724, 727 (5th Cir.1982).
this instance Louisiana has not waived its im-
munity in federal court for state law claims.8                  In deciding whether a suit against an entity
                                                            is in reality a suit against the state, several fac-
                                                            tors must be determined: (1) whether the state
   6
    See Fitzpatrick v. Bitzer, 427 U.S. 445, 456            statutes and caselaw characterize the agency as
(1976); Usery v. La. ex rel. La. Dep’t of Health &          an arm of the state; (2) the source of funds for
Hosp., 150 F.3d 431, 435 (5th Cir. 1998).                   the entity; (3) the degree of local autonomy
   7
                                                            the entity enjoys; (4) whether the entity is con-
     See Seminole Tribe v. Florida, 517 U.S. 44,
                                                            cerned primarily with local, as opposed to
55 (1996) (stating the circumstances under which
                                                            statewide problems; (5) whether the entity has
Congress may abrogate state sovereign immunity).
Denials of motions to dismiss and motions for sum-          authority to sue and be sued in its own name;
mary judgment in the title VII context do not               and (6) whether the entity has the right to hold
constitute final pretrial orders. See Jackson v. City
of Atlanta, Tex., 73 F.3d 60, 62 (5th Cir. 1996).
We dismiss the appeal with respect to all title VII
claims, except to the extent that those appellate
                                                               8
claims sound in sovereign and qualified immunity.                (...continued)
We therefore do not opine on either on (1) whether          state, or any state agency, board, commission, or
Early has complied with title VII’s administrative          political subdivision of the state receiving services
requirements or (2) whether there are sufficient            from an employee and, in return, giving compensa-
issues of material fact to preclude summary                 tion fo any kind to an employee.” LA. R.S. 23:302.
judgment with respect to title VII.
                                                               9
                                                                 See Great N. Life Ins. Co. v. Read, 322 U.S.
   8
       Louisiana defines an employer as “. . . the          47, 54 (1944); Martin v. Univ. of Louisville, 541
                                    (continued...)          F.2d 1171, 1175 (6th Cir. 1976).

                                                        4
and use property.10 Although there is some                  tent it turns on an issue of law.13 Such juris-
language suggesting that there are situations in            diction does not allow the reviewing court to
which Southern should not be treated as a                   reach the merits on an interlocutory appeal.
state entity, we have held that it is entitled to           See Felton v. Polles, 315 F.3d 470, 477 (5th
Eleventh Amendment immunity if the state                    Cir. 2002).
does not waive it. See Richardson, 118 F.3d
at 454-56.11                                                    The test for whether qualified immunity
                                                            applies asks (1) whether plaintiff has alleged a
                       D.                                   violation of a clearly established constitutional
    For the reasons discussed above, Southern               or statutory right and (2) if so, whether his
is subject to suit only if Congress intended to             conduct was objectively unreasonable in light
abrogate state sovereign immunity. Section                  of the clearly established law at the time the
1983 does not abrogate Eleventh Amendment                   incident took place. See Felton, 315 F.3d at
immunity, and Louisiana has not waived it.                  477. The second prong of this task actually
Champagne v. Jefferson Parish Sheriff's Of-                 subdivides into two inquiries: (a) whether the
fice, 188 F.3d 312, 314 (5th Cir. 1999).12 Any              allegedly violated rights were clearly estab-
§ 1983 suit against a defendant in his official             lished at the time of the incident and
capacity must therefore be dismissed.                       (b) whether the violators’ conduct was objec-
                                                            tively unreasonable in light of those rights.
                    III.                                    See id.
   Qualified immunity is appealable to the ex-
                                                                                  A.
                                                                Qualified immunity serves to “shield a
   10
      See Delahoussaye v. City of New Iberia, 937           government official from civil liability for dam-
F.2d 144 (5th Cir.1991); Tradigrain v. Miss. State          ages based upon the performance of dis-
Port Auth., 701 F.2d 1131 (5th Cir.1983) (making            cretionary functions if the official’s acts were
the analysis for purposes of diversity jurisdiction).       objectively unreasonable in light of then clearly
   11
                                                            established law.” Thompson v. Upshur Coun-
     Although Louisiana’s assessment of whether
                                                            ty, Tex, 245 F.3d 447, 456 (5th Cir. 2001).
Southern is a state agency is not binding on federal
                                                            Where a defendant pleads qualified immunity,
courts, it is worth noting that Article VIII, Sec. 7
of the Louisiana constitution considers the                 the burden of proof shifts to the plaintiff. See
Southern University System a Louisiana state                Pierce v. Smith, 117 F.3d 866, 872 (5th Cir.
agency. Southern is, under the constitution, a sys-         1997) (internal quotations and citations
tem under the control and management of its                 omitted).
Board.
                                                               The standard of review for an interlocutory
   12
       Moreover, we do not reach the question               order denying a summary judgment motion
whether Congress intended to abrogate state sover-          sounding in qualified immunity differs some-
eign immunity for §§ 1981, 1985 and 1986, be-               what from the standard usually applied to sum-
cause those issues are inadequately briefed by both
sides. We do clarify, however, that certain state
entities do in fact enjoy Eleventh Amendment
                                                               13
immunity from both § 1981 and § 1983 claims.                     See Southard v. Bd. of Crim. Justice, 114
See Loya v. Tex. Dep’t of Corrections, 878 F.2d             F.3d 539, 548 (5th Cir. 1997) (quoting Mitchell v.
860, 861 (5th Cir. 1989).                                   Forsyth, 472 U.S. 511, 530 (1985)).

                                                        5
mary judgment motions. Ordinarily we re-                   because the factual predicates are not
view a summary judgment de novo, viewing                   available.15
the evidence in the light most favorable to the
nonmovant. See Hare v. City of Corinth,                        The appeal o f the substantive title VII is-
Miss., 135 F.3d 320, 325 (5th Cir. 1998). Be-              sues is DISMISSED for want of appellate jur-
cause of our limited appellate jurisdiction over           isdiction. The order is REVERSED insofar as
interlocutory orders, however, we cannot re-               it denies immunity under § 1983 to defendants
view whether the evidence “could support a                 in their official capacities, and insofar as it de-
finding that particular conduct occurred.”                 nies sovereign immunity on state law claims.
Behrens v. Pelletier, 516 U.S. 299, 313                    The order is AFFIRMED insofar as it denies
(1996). We must take as given the facts that               summary judgment relating to title VII im-
the district court assumed when it denied sum-             munity claims. This matter is REMANDED as
mary judgment, and we determine whether                    to claims of qualified immunity and for further
those facts state a claim under clearly estab-             proceedings as needed.
lished law. See Nerren v. Livingston Police
Dep’t, 86 F.3d 469, 471 (5th Cir. 1996).14

                       B.
   The individual defendants are victims of a
sparingly worded order denying their motions.
All the order states is that “genuine issues of
material fact remain.” We cannot sit as fact-
finder.

    The district court makes no attempt to in-
dicate for which motions those “issues of ma-
terial fact remain.” Our problem is that, to re-
view an interlocutory order involving a denial
of a summary judgment motion sounding in
qualified immunity, we must take the facts as
the district court took them, but the order does
not reveal how the district court viewed the
facts in relationship to each qualified immunity
claim. We must therefore remand all questions
involving qualified immunity (and not
                                                              15
foreclosed by our sovereign immunity rulings),                   Specifically, we remand for more factual ela-
                                                           boration any qualified immunity claims in regard to
                                                           §§ 1981, 1983, 1985, and 1986. We do not mean
   14
       For example, the panel may review matters           to suggest that immunity status turns on the same
such as (1) whether the right is clearly established       evidence for each statute, but merely that we lack
and (2) to the extent that the relevant discrete,          the evidence we need to review meaningfully any
historic facts are disputed, the objective reason-         qualified immunity determination under any
ableness of the defendants’ conduct. See Pierce v.         standard. See generally Johnson v. Jones, 515
Smith, 117 F.3d 866, 871 (5th Cir. 1997) (internal         U.S. 304, 317-18 (1995) (stating conditions under
citations omitted).                                        which interlocutory appeal may be dismissed).

                                                       6
