     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                       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. 14-60651
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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                                  No. 14-60651
                                        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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                                 No. 14-60651
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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                                      No. 14-60651
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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                                 No. 14-60651
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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