United States District Court, S.D. Mississippi, Northern Division
DR. TAREK EL-BAWAB PLAINTIFF
JACKSON STATE UNIVERSITY DEFENDANT DR. TAREK EL-BAWAB PLAINTIFF
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
P. JORDAN III, CHIEF UNITED STATES DISTRICT JUDGE
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  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  is
granted; Defendants' Motion to Strike  is denied.
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
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.
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”).
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.
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 
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.
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.
throughout this timeline are other confrontations between
El-Bawab, Manzoul, and others. El-Bawab believes these
encounters were also based on discrimination and retaliation.
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 . The Court has subject-matter and personal
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).
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.
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
Section 1983 First Amendment Retaliation Claims
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.
Claims against JSU and Individuals in Their Official
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.
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”).
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
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.
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.
Individual-Capacity Claims Against Defendants Alo, Manzoul,
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. 
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)).
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., ...