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El-Bawab v. Jackson State University

United States District Court, S.D. Mississippi, Northern Division

January 24, 2018

DR. TAREK EL-BAWAB PLAINTIFF
v.
JACKSON STATE UNIVERSITY DEFENDANT DR. TAREK EL-BAWAB PLAINTIFF
v.
CAROLYN W. MEYERS, individually and in her official capacity, RICHARD A. ALO, individually and in his official capacity, AND MAHMOUD A. MANZOUL, individually and in his official capacity DEFENDANTS

          ORDER

          DANIEL P. JORDAN III, CHIEF UNITED STATES DISTRICT JUDGE

         Defendants Jackson State University (“JSU”), Carolyn Meyers, Richard Alo, and Mahmoud Manzoul seek summary judgment in these consolidated employment cases. Based on the following analysis, Defendants' Motion for Summary Judgment [95] is granted as to the § 1983 First Amendment retaliation claim, any Title VII claim against individual defendants, and any color-based Title VII claim. The motion is otherwise denied. Plaintiff's Motion to Supplement [112] is granted; Defendants' Motion to Strike [113] is denied.

         I. Background

         Plaintiff Tarek El-Bawab-an Egyptian with a white complexion-brings three claims under Title VII of the Civil Rights Act of 1964: (1) a failure-to-promote claim based on two unsuccessful applications for promotion to full professor in 2014 and 2015; (2) a retaliation claim based on his prior complaints of discrimination; and (3) a hostile-work-environment claim. El-Bawab also pursues a claim under 42 U.S.C. § 1983, asserting that all Defendants retaliated against him for exercising his First Amendment right to free speech when he criticized his co-workers' qualifications to serve as full professors. These consolidated cases are not his first against JSU.

         JSU hired El-Bawab in August 2005 as an associate professor in the Department of Electrical and Computer Engineering (“DECE”). In fall 2010, El-Bawab applied for promotion to full professor, but the application failed, so he sued JSU under Title VII. See El-Bawab v. Jackson State University, No. 3:11-CV-553-DPJ-FKB (“El-Bawab I”). That action was settled and dismissed on January 21, 2014.

         A few days later, on January 27, 2014, El-Bawab sent three emails to Defendant Meyers, then JSU's President, regarding the alleged deficient qualifications of three faculty members in DECE: Kamal Ali, Gordon Skelton, and Khalid Abed. See Ali Email [102-9] at 86; Skelton Email [102-12] at 1; Abed Email [102-9] at 1. In conjunction with those communications, El-Bawab sent Meyers voluminous employment records regarding these other professors in an effort to show that they were unqualified and, in some cases, had committed unethical acts. He also complained to Meyers that Defendant Mahmoud Manzoul gave preferential treatment to the other professors while unfairly rejecting El-Bawab's superior qualifications. El-Bawab then aired these same beliefs during a review conducted by the Accreditation Board for Engineering and Technology, Inc. (“ABET”).

         Roughly following these events, El-Bawab twice re-applied for promotion to full professor. In both instances, the process included several layers of review starting with a Promotion and Tenure Committee made up of DECE faculty and ending with a final decision from President Meyers. According to Meyers, “the most important [committee] is the departmental [committee]. These are the experts in that discipline.” Meyers Dep. [102-8] at 6. JSU denied both applications citing insufficient grant procurement and other issues.

         El-Bawab says these decisions resulted from discriminatory animus and retaliation for both his prior Title VII complaints and his protected speech criticizing his co-workers. More specifically, he believes his department head, Defendant Manzoul, sabotaged his applications in 2014 and 2015 by packing the committees with professors El-Bawab had personally attacked. In 2014, the committee included: Ali, Skelton, Abed, Dr. Shahrouz Aliabadi, and Dr. Robert Whalin. El-Bawab attacked the first three in his emails to President Meyers, and he attacked Dr. Whalin in El-Bawab I. Ali Email [102-9] at 86; Skelton Email [102-12] at 1; Abed Email [102-9] at 1; El-Bawab I, Mem. Opp'n [70] at 14 (detailing complaints concerning Whalin). And just in case anyone forgot, El-Bawab supplemented his 2014 application on February 23, 2015, to include his emails to Dr. Meyers and add additional concerns against the only committee member he had not previously assailed, Dr. Aliabadi. Appendum to 2014 Application [102-5] at 21-24. The committee voted to reject the 2014 application for promotion to full professor, and Meyers ultimately concurred.

         Manzoul likewise filled the 2015 committee with professors El-Bawab had attacked. Indeed the only member of the 2015 committee El-Bawab had not accused of being unqualified for his job was Dr. Abdelnasser Eldek. Dr. Eldek dissented from the committee's recommendation against promotion to full professor, believing that El-Bawab met JSU's requirements. See Eldek Dep. [102-3] at 62. Again, several layers of review followed, and Meyers ultimately reached the same conclusion as Manzoul's committee.

         Sprinkled throughout this timeline are other confrontations between El-Bawab, Manzoul, and others. El-Bawab believes these encounters were also based on discrimination and retaliation.

         After filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging retaliation and national-origin discrimination as to the 2014 application, El-Bawab sued JSU under Title VII on October 9, 2015, in Civil Action No. 3:15-CV-733. On October 27, 2016, El-Bawab again sued JSU in Civil Action No. 3:16-CV-845 after a second EEOC charge asserting retaliation and national-origin discrimination related to his failed 2015 promotion application. That suit also raised Title VII claims, but it added claims under 42 U.S.C. § 1983 and claims against Defendants Meyers, Alo, and Manzoul. The Court consolidated the cases on November 30, 2016, and after the discovery period ended, Defendants jointly moved for summary judgment [95]. The Court has subject-matter and personal jurisdiction.

         II. Standard

         Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when the evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when . . . both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may “not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. See TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993).

         Two additional notes are important in this case. First, the party responding under Rule 56(c)(1), must cite to “particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1) (emphasis added). The Court is under no “duty to sift through the record in search of evidence to support a party's opposition to summary judgment.” Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379-80 (5th Cir. 2010) (citation and quotation marks omitted); see also Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials.”). In the present case, El-Bawab attaches nearly 2, 000 pages of documents and cites a small percentage of them in his brief. Second, the non-movant “must identify specific evidence in the record and articulate the manner in which that evidence supports [his] claim.” Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010) (emphasis added). Here, Plaintiff's response is at times a frustrating read because it intermingles the issues and often fails to directly address Defendants' legal arguments with countervailing law and specific facts. The Court has made every effort to consider the record as a whole and match Plaintiff's points to Defendants' arguments, but there are times when the response is not sufficiently articulated.

         III. Analysis

         A. Section 1983 First Amendment Retaliation Claims

         El-Bawab believes JSU refused to promote him to full professor because he criticized the credentials of other faculty members who attained that rank. According to him, his criticism was protected by the First Amendment to the United States Constitution, and therefore Defendants violated his right to free speech. Because the analysis for these § 1983 claims differs for each Defendant, the Court will separately consider the claims.

         1. Claims against JSU and Individuals in Their Official Capacities

         The threshold question is whether the Eleventh Amendment bars El-Bawab's claims against JSU and its employees sued in their official capacities. “The Eleventh Amendment grants a state immunity from suit in federal court by . . . its own citizens.” Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 616 (2002). Immunity also extends to state agencies that are considered “arms of the state.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 70 (1989). Finally, “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.” Id. at 71. Such a suit is also barred by the Eleventh Amendment. Id.

         El-Bawab never directly concedes this point, but he offers no cogent reason why the Court should not follow those cases granting Eleventh Amendment immunity to JSU and its officers sued in their official capacities. See, e.g., Bridges v. Brown, No. 3:16-CV-760-TSL-RHW, 2017 WL 579548, at *1 (S.D.Miss. Feb. 10, 2017) (holding that JSU's Eleventh Amendment argument is “clearly meritorious”); Ward v. Jackson State Univ., No. 3:11-CV-188- TSL-MTP, 2013 WL 75077, at *2 (S.D.Miss. Jan. 4, 2013); Meredith v. Jackson State Univ., No. 3:09-CV-303-DPJ-FKB, 2010 WL 606402, at *2 (S.D.Miss. Feb. 17, 2010) (granting immunity and noting that “[i]n both published and unpublished decisions, this Court has consistently found JSU to be an arm of the state”).

         El-Bawab does, however, make passing reference to Ex parte Young when addressing the official-capacity claims. 209 U.S. 123, 155-56 (1908). In Ex parte Young, the Court “created an exception to Eleventh Amendment immunity for claims for prospective relief against state officials who have been sued in their official capacities.” Nelson v. Univ. of Tex. at Dall., 535 F.3d 318, 320 (5th Cir. 2008) (citing Ex parte Young, 209 U.S. 123). This exception would not save El-Bawab's claims for monetary damages, which are hereby dismissed as to JSU and the official-capacity defendants. But it could conceivably allow him to proceed on his claim for prospective injunctive relief-an immediate promotion to full professor. Id.

         For a state officer to face liability under Ex parte Young, that officer must have “some connection” to the requested relief. Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014). Here, Meyers is the only individual defendant who ever had authority to grant the prospective relief El-Bawab seeks, but she is no longer employed by JS U.So none of the current Defendants are proper parties under Ex parte Young.

         Under some circumstances, the Court might invite a plaintiff to seek leave to amend and substitute parties. See Mangaroo v. Nelson, 864 F.2d 1202, 1204 (5th Cir. 1989) (stating in dicta that successors in office replace their predecessors in cases against them in their official capacities). But as discussed next, requesting leave to amend would be futile.

         2. Individual-Capacity Claims Against Defendants Alo, Manzoul, and Meyers

         As El-Bawab correctly notes, the Eleventh Amendment does not bar a claim against individuals sued in their individual capacity. See Will, 491 U.S. at 67-71. But these claims raise a different barrier that El-Bawab ignores-qualified immunity. See Defs.' Mem. [96] at 14. Qualified immunity is a shield from individual liability for “government officials performing discretionary functions . . . as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Good v. Curtis, 601 F.3d 393, 400 (5th Cir. 2010) (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)). “[Q]ualified immunity generally protects ‘all but the plainly incompetent or those who knowingly violate the law.'” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

         Courts use a two-step analysis to determine whether qualified immunity applies. “[A] court addressing a claim of qualified immunity must determine first whether the plaintiff has adduced facts sufficient to establish a constitutional or statutory violation.” Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Second, if a violation has been alleged, the Court must determine “‘whether [the officer's] actions were objectively unreasonable in light of clearly established law at the time of the conduct in question.'” Id. (alteration in original) (quoting Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007)). And “[w]hen a defendant raises qualified immunity, the burden is on the plaintiff to ‘demonstrate the inapplicability of the defense.'” Coleman v. Marion Cty., ...


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