     Case: 09-30753     Document: 00511119857          Page: 1    Date Filed: 05/24/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 24, 2010

                                     No. 09-30753                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



SYROUS K KOOROS, Doctor,

               Plaintiff - Appellant

v.

NICHOLLS STATE UNIVERSITY; LAN NAM; SABRINA LAURENT;
DAVID BOUDREAUX; DEBORAH BORDELON; LARRY HOWELL; SHAWN
MAULDIN; BETTY KLEEN; KATIE LEONARD; STEPHEN HULBERT;
ROBERT ALEXANDER; SONYA PREMEAUX,

               Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:08-CV-1444


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Proceeding pro se, Syrous Kooros, a former tenured faculty member at
Nicholls State University, sued the University and several members of its
faculty and administration claiming he was unlawfully terminated and



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30753

discriminated against. Kooros claims under numerous provisions of federal and
state law. The defendants moved to dismiss and in the alternative moved for
summary judgment.            The district court dismissed Kooros’s federal claims,
finding that the University was immunized from suit by the Eleventh
Amendment and that the individual defendants were protected in their official
capacity by Eleventh Amendment immunity and by qualified immunity in their
individual capacity. The district court also found that Kooros failed to comply
with the statutory prerequisites necessary to bring a claim under Title VII.
After dismissing the federal claims, the district court found that it lacked
diversity jurisdiction and declined to exercise jurisdiction over the state claims.1


                                                I
       The district court dismissed the claims against Nicholls State University
on the grounds that the proper party is an entity of the state entitled to
immunity under the Eleventh Amendment.                    We review the district court’s
determination of Eleventh Amendment immunity de novo.2
       The Eleventh Amendment protects States from suit in federal courts.3 “It
has long been settled that the reference to actions “against one of the United
States” encompasses not only actions in which a State is actually named as the



       1
         Two additional defendants, Lan Nam and Sonya Premeaux, were properly dismissed
for failure to prosecute.
       2
           Severance v. Patterson, 566 F.3d 490, 495 (5th Cir. 2009).
       3
        U.S. CONST . amend. XI (“The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”);
Hans v. Louisiana, 134 U.S. 1 (1890).

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                                          No. 09-30753

defendant,       but    also    certain   actions    against     state   agents    and      state
instrumentalities.” 4          Under Louisiana law, Nicholls State University is
administered by the Board of Trustees for State Colleges and Universities.5 This
court has previously recognized that the Board of Trustees is an arm of the State
of Louisiana and thus entitled to Eleventh Amendment immunity from suit.6
The claims against Nicholls State are thus subject to dismissal under Eleventh
Amendment immunity.
       To the extent Kooros’s claims may be characterized as employment
discrimination claims arising under Title VII, they are not barred by Eleventh
Amendment          immunity.7         Nonetheless,      Kooros    failed     to   exhaust    his
administrative remedies by filing a charge with the EEOC. Filing a charge with
the EEOC is a precondition to filing suit in district court. 8 As Kooros failed to
file a charge with the EEOC before filing suit in federal district court, any claims
arising under Title VII are subject to dismissal.


                                                II



       4
           Regents of the Univ. of California v. Doe, 519 U.S. 425 (1997).
       5
        Nicholls State University is “under the supervision and management of the Board of
Trustees for State Colleges and Universities” according to Louisiana Revised Statute 17:3217.
       6
        See Laxey v. Louisiana Bd. of Trustees, 22 F.3d 621 (5th Cir. 1994); see also
Richardson v. Southern University, 118 F.3d 450 (5th Cir. 1997) (discussing factors influencing
determination of whether entity is considered an arm of the State).
       7
        See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 n.1 (5th Cir. 2002) (“we
have long recognized that Congress has clearly abrogated the states' Eleventh Amendment
immunity in enacting Title VII”).
       8
           See Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002).

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                                        No. 09-30753

       The district court found the claims against the individual defendants
barred by qualified immunity to the extent they are against the defendants in
their individual capacities and barred by Eleventh Amendment immunity to the
extent they are against the defendants in their official capacities. As above, we
review both determinations de novo.9
       We turn first to the grant of qualified immunity. “Qualified immunity
protects public officials from suit unless their conduct violates a clearly
established constitutional right. The qualified immunity standard gives ample
room for mistaken judgments, by protecting all but the plainly incompetent or
those who knowingly violate the law.               Thus, a public official is entitled to
qualified immunity unless a plaintiff demonstrates (1) a violation of a
constitutional right and (2) that the right at issue was clearly established at the
time of the violation.” 10 Once a defendant pleads qualified immunity, the burden
shifts to plaintiffs to rebut it.11 Kooros cannot merely rest on the pleadings to
meet this burden.12 Kooros has not put forward any specific evidence supporting
his allegations that the officials acted in an unreasonable manner, the officials
are entitled to qualified immunity for claims against them in their individual
capacities.
       To the extent Kooros’s claims are against the individual defendants in
their official capacities, they are barred in part by Eleventh Amendment


       9
       Severance, 566 F.3d at 495 (review of Eleventh Amendment immunity); Collier v.
Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (review of qualified immunity determination).
       10
            DePree v. Saunders, 588 F.3d 282, 288 (5th Cir. 2009).
       11
            Hathaway v. Bazany, 507 F.3d 312, 320 (5th Cir. 2007).
       12
            Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 490 (5th Cir. 2001).

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                                       No. 09-30753

immunity. Suits against individuals in their official capacities are treated as
suits against the State and are barred by the Eleventh Amendment.13 Kooros’s
claims for money damages are thus barred by the Eleventh Amendment. We
decline to search Kooros’s prolix pleadings in search of other possible claims.
      We AFFIRM.




      13
           McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004).

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