                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                   _________________________________

                              No. 00-60143
                            Summary Calendar
                         _____________________



ALAN D. HINES,

                  Plaintiff - Appellant,

          v.

MISSISSIPPI DEPARTMENT OF CORRECTIONS,

                  Defendant - Appellee.

                 ---------------------------------
           Appeal from the United States District Court
             for the Southern District of Mississippi
                           3:99-CV-133-BN
                         November 14, 2000

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Alan Hines appeals his claims of racial harassment,

retaliation, and discrimination under Title VII; his claims under

sections 1981, 1983, and 1985(3) that his civil rights were

violated; and his claim that he was denied due process before the

Mississippi Employee Appeals Board and the district court.

                   FACTUAL AND PROCEDURAL BACKGROUND

     Following an administrative review, Alan Hines received a

Letter of Termination of Employment on June 18, 1998.      Prior to


     *
      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opinion should not be published and is not precedent except under the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.
his termination, Hines had worked 12 years for the Mississippi

Department of Corrections (MDOC).   Since October 1995, Alan Hines

had held the position of Correctional Administrator III (Captain)

in Area II of the Central Mississippi Correctional Facility.   The

termination letter stated Hines was being terminated because of

two Group Three violations resulting from a May 2, 1998 incident.

Specifically, Hines violated MDOC Policy #01.38 entitled,

“Prohibition of use of inmates as servants,” by using three

inmates to work on his privately owned vehicle.   Hines’ second

Group Three violation for the “falsification of records . . . or

other official state documents,” was based on his written

statement to the Internal Audit Division that no inmates had

performed any labor of his privately owned vehicle.   Hines

appealed his termination to the Mississippi Employee Appeals

Board and a hearing was conducted on October 13, 1998.

     The Appeals Board found that the watch commander, Captain

Jack Joiner, responding to a call, went to the prison’s parking

lot and along with the prison’s superintendent, John Donnelly,

observed prisoners working on Hines’ vehicle.   According to

testimony before the Board, Hines and at least one of the

prisoners admitted to the work being performed on his vehicle.

Based on the evidence presented, the Board concluded that:

     The appellant has the burden of proving that the action
     taken was in error or was arbitrary or capricious; the
     appellant has failed to sustain this burden.



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       The respondent acted in accordance with the published
       policies, rules, and regulations of the State Personnel
       Board, and the action taken by the respondent was allowed
       under the said policies, rules, and regulations, hence the
       action of the respondent must be allowed to stand.

       Hines presents a starkly different version of the facts.    On

the day in question, he and another off-duty correctional

officer, Gary Smith, arrived at the prison to fix his truck which

he had left in the parking lot the night before.    As the two of

them were being accompanied to the parking lot by Lt. Norris

Kennedy, three prisoners emerged from the visitation room.

Because he was short of staff, Kennedy asked Hines if he would

monitor the three prisoners while they cleaned up the parking

lot.    According to Hines, the three prisoners were those

responsible for cleaning up the lot on visitation days and it

would not have been uncommon for them to clean the lot without

any supervision.    Shortly after he began working on his truck,

Superintendent Donnelly arrived on the scene and accused Hines of

using the inmates to repair his vehicle.    Five to ten minutes

later, after the inmates had been sent back to their cells,

Captain Joiner arrived and asked Hines for the names of the

inmates that had been present.    Five days after the parking lot

incident, Hines filed a complaint against Superintendent Donnelly

alleging a pattern of racial harassment.



                             DISCUSSION



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     The district court properly granted summary judgment to the

defendant on plaintiff’s claims of racial discrimination in

violation of Title VII.   The plaintiff failed to prove the

elements needed to establish his prima facie case.    To establish

a prima facie case of discrimination Hines generally must prove

that: (1) he is a member of a protected class; (2) he was

qualified for the position that he held; (3) he was discharged;

and (4) he was replaced by someone not within the protected

class.   Bennett v. Total Minatome Corp., 138 F.3d 1053, 1060 (5th

Cir. 1998).   Plaintiff presented no evidence to the district

court that he was replaced by an individual that was not a member

of the protected class nor did he present other circumstantial

evidence from which a reasonable factfinder could infer

discriminatory intent.

     As an alternative basis for dismissing the claim, the

district court found that Hines had not presented sufficient

evidence that the defendant’s non-discriminatory reason for his

termination, the policy violations, were a pretext.   A party

opposing summary judgment may not rest upon mere allegations

contained in the pleadings, but must set forth and support by

summary judgment evidence specific facts showing the existence of

a genuine issue for trial.   Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255-57, 106 S.Ct. 2505, 2513-14 (1986).    Other than his

own assurances of what would be presented and proven at trial,


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Hines presented no evidence showing the falsity of the

defendant’s proferred reason.

     Liberally construing his complaint, Hines also raised a

claim for retaliation under Title VII.    Hines alleges that

Superintendent Donnelly had been harassing him because of his

race and when he filed a complaint with the Commissioner,

Donnelly retaliated by ordering the investigation which led to

his termination.   To establish a prima facie case of retaliation

under Title VII, a plaintiff must show “(1) that [he] engaged in

an activity protected by Title VII, (2) that an adverse

employment action occurred, and (3) that a causal link existed

between the protected activity and the adverse employment

action.”   Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir.

1996).   The defendant does not contest that prongs (1) and (2)

are satisfied, but argues that Hines has failed to establish the

requisite causal link.   The district court bundled this claim

into its analysis of whether Hines had presented sufficient

evidence of pretext.   The district court concluded that he had

not presented evidence, other than his own allegations, that he

was fired in retaliation for filing the complaint rather than for

his violation of the MDOC’s Guidelines.    Similarly, we find no

evidence in the record showing the investigation was conducted in

response to Hines’ racial harassment complaint.    Hines’ claim is

further undercut by the temporal relationship of the events --



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the parking lot incident occurred on May 2, while his complaint

was filed five days later on May 7.

     Despite the contention of the MDOC, it appears from the

record that Hines properly raised his claims under §§ 1981, 1983

and 1985(3).   In its opinion and order, the district court

granted summary judgment and dismissed the plaintiff’s Title VII

claims without reference to his §§ 1981, 1983, and 1985(3)

claims.   The MDOC argues, in two conclusory paragraphs, that the

claims are barred by the Eleventh Amendment.    We do not generally

consider issues that were not addressed by the district court

unless our failure to do so would result in grave injustice,

Masat v. United States, 745 F.2d 985, 988 (5th Cir. 1984), or

unless the issue can be resolved as a matter of law or is

otherwise beyond doubt.     Texas v. United States, 730 F.2d 339,

358 n. 35 (5th Cir. 1984).    The second exception is applicable in

this case.

     The Eleventh Amendment bars suits in federal court by a

citizen of a state against his own state or against a state

agency or department.     Pennhurst State School & Hosp. v.

Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67

(1984); Hirtz v. Texas, 974 F.2d 663, 665 (5th Cir. 1992).     The

Mississippi Department of Corrections is a department of the

state of Mississippi and enjoys the same immunity as the state

itself.   Congress, however, can abrogate the states' sovereign


                                   6
immunity when acting to enforce constitutional rights pursuant to

section 5 of the Fourteenth Amendment.     See Seminole Tribe of

Florida v. Florida, 116 S.Ct. 1114, 1128 (1996) (citing

Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666 (1976)).

Congress has not chosen to abrogate the states’ immunity for

suits under §§ 1981, 1983, and 1985(3), Sessions v. Rusk State

Hospital, 648 F.2d 1066, 1069 (5th Cir. 1981) (“Section 1981

contains no congressional waiver of the state’s eleventh

amendment immunity); Howlett v. Rose, 496 U.S. 356, 364, 110

S.Ct. 2430, 2436 (1990) (“Will [v. Michigan Dept. of State

Police, 491 U.S. 58, 109 S.Ct. 2304 (1989)] establishes that the

State and arms of the State, which have traditionally enjoyed

Eleventh Amendment immunity, are not subject to suit under § 1983

in either federal court or state court.”); Fincher v. State of

Florida Department of Labor & Employment Security – Unemployment

Appeals Commission, 798 F.2d 1371, 1372 (11th Cir. 1986) (holding

that Congress did not abrogate the states’ immunity in enacting

Section 1985), therefore Hines’ claims are barred as a matter of

law.

       Finally, Hines was not denied due process by the Appeals

Board or the district court.    Hines presents no evidence, nor in

this instance does he even allege, that he was not allowed to

fully present his case before the Appeals Board or the district

court.    Rather, Hines’ claim merely attempts to reargue the

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evidence.    His claim also includes an allegation that the

district court improperly relied on the fact findings of the

Appeals Board.    We review a district court’s findings of fact for

clear error.     Vanderbilt v. Collins, 994 F.2d 189, 196 (5th Cir.

1993).   We conclude that the district court did not abdicate its

role as factfinder, nor commit clear error in performing it.



                              CONCLUSION

     Plaintiff’s claims of discrimination and retaliation in

violation of Title VII lack evidentiary support.    Hines presented

no evidence that he was replaced by an individual outside the

protected class.    Additionally, he presented no evidence, other

than mere allegations, that would create a genuine issue of

material fact regarding pretext or from which a factfinder could

reasonably infer discriminatory intent.    Plaintiff also failed to

produce evidence to carry his burden of showing the causal link

between his filing of a racial harassment complaint and the

investigation ordered by Superintendent Donnelly.    Plaintiff’s

claims brought against the Mississippi Department of Corrections

pursuant to §§ 1981, 1983, and 1985(3) are barred by the Eleventh

Amendment.    Lastly, neither the Employee Appeals Board nor the

district court denied the plaintiff due process.    Accordingly,

the judgment of the district court is AFFIRMED.




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