IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30321
(Summary Calendar)
CAROL WASHINGTON,Ind., and on behalf of the class
she represents. 5639 Bennington Ave., Baton Rouge,
Louisiana 70808,
Plaintiff-Appellant,
versus
LOUISIANA LOTTERY
CORPORATION, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
For the Middle District of Louisiana
(93-CV-1124)
October 21, 1996
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges:
PER CURIAM:*
This is an appeal by Plaintiff-Appellant Carol Washington from
the district court’s order granting summary judgment against her on
employment discrimination claims brought under 42 U.S.C.
§§ 1981(a), 1983, 1985(3), and 2000e (Title VII). As Washington
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
failed to plead and demonstrate the existence of a viable cause of
action under any of those statutes, we affirm.
I
FACTS AND PROCEEDINGS
As this appeal can be resolved purely on legal and procedural
grounds, the facts underlying Washington’s claim are not
particularly relevant. Washington is a black former employee of
Defendant-Appellee Louisiana Lottery Corporation (the Lottery), who
was hired in 1991 as an administrative assistant in the public
relations department. Washington’s stint in that department was
short-lived, however, because personality clashes quickly developed
between her and the department head, Kerry Pourciau, who also is
black. Pourciau notified Lottery officials that he was
dissatisfied with Washington and requested that she be removed from
the public relations department.
Washington was transferred to a new position in February 1992.
Keith Shuford, the director of human resources, decided that the
human resources and finance departments could use some extra help,
so he created a new position for Washington as administrative
assistant to both departments. The following autumn, Shuford asked
Washington to prepare a set of written job descriptions for the
various positions at the Lottery. In the course of doing so,
Washington reviewed the existing grade levels and salary scales of
all Lottery employees and came to the conclusion that black Lottery
2
employees were paid less than their white co-workers.
The events that followed are unclear, but we adopt
Washington’s version for the purposes of reviewing the district
court’s entry of summary judgment.1 In early December, 1992,
Washington completed her task of preparing the Lottery job
descriptions. Then, on December 17, she and several other black
employees met with Lottery officials to express concerns about the
treatment of minority employees. Although Washington was not the
person who requested the meeting, she presented a memorandum to
everyone present in which she detailed the Lottery’s compensation
figures and argued that minorities were underpaid. That afternoon,
Washington met with one of the Lottery officials, who assured her
that no retribution would be forthcoming and told her that the
Lottery officials would try to open lines of communication between
employees and upper management.
On January 4, 1993, Shuford informed Washington that the new
position he had created for her was no longer necessary because the
human resources and finance departments did not have enough work to
keep her busy. Shuford offered Washington a clerk position in the
distribution center, promising that she would retain her current
classification and salary even though the Lottery classifies the
clerk position at a lower pay grade. Washington refused the offer,
and her employment was terminated the following day.
1
See Graham v. Amoco Oil Co., 21 F.3d 643, 648 n.2 (5th Cir.
1994); Teply v. Mobil Oil Corp., 859 F.2d 375, 377 (5th Cir. 1988).
3
Washington believes that the Lottery fired her in retaliation
for expressing her belief that black Lottery employees are paid
less than their white colleagues. She therefore filed this
employment discrimination suit against the Lottery and the
individual co-Defendants-Appellees Bonnie Fussell, Ken Brickman,
Randy Davis, Gwen Hamilton, Daniel Kane, Keith Shuford, Karen
Fournet, and Gerry Roy (collectively, the Employees).
Washington alleged in her pleadings that the defendants
violated Title VII, § 1981, and § 1983 by failing to promote her,
and eventually firing her, based on her race. She also alleged,
pursuant to § 1983, that the defendants violated her First
Amendment right to freedom of speech by firing her in retaliation
for expressing her belief that the treatment of black Lottery
employees was inferior to the treatment of white employees.
Finally, she alleged, under § 1985, that the Employees conspired to
violate her First Amendment right to freedom of speech.
The district court granted summary judgment for the defendants
on each of Washington’s claims. It rejected Washington’s first
claim -- that she was denied promotional opportunities and was
later terminated based on her race -- because she failed to
establish a prima facie case of discrimination.2 Washington does
2
With respect to her claim for discriminatory failure to
promote, Washington failed to offer evidence that she had been
denied a promotion that was awarded to someone outside her
protected class. Further, with respect to her discriminatory
termination claim, Washington failed to offer evidence that the
Lottery had filled her former position at all.
4
not take issue on appeal with the district court’s dismissal of
that claim.
The district court also rejected Washington’s claims for
retaliatory discharge under § 1983 and for conspiracy under § 1985
because neither the Lottery, which is a state agency, nor the
Employees while acting in their official capacities, are “persons”
against whom recovery is available under § 1983 or § 1985.
Washington now appeals only the district court’s dismissal of her
§ 1983 retaliation and § 1985 conspiracy claims.3
II
ANALYSIS
A. STANDARD OF REVIEW
We review summary judgments de novo, applying the same
standard as the district court.4 Summary judgment is proper if the
pleadings and the summary judgment record show that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.5 A dispute about a
material fact is “genuine” if the evidence is such that a
3
See Matter of Texas Mortgage Servs. Corp., 761 F.2d 1068,
1073 (5th Cir. 1985) (holding that issues not raised on appeal in
the brief of the Appellant are considered waived and cannot be
noticed or entertained by the Court of Appeals).
4
Waltman v. International Paper Co., 875 F.2d 468, 474 (5th
Cir. 1989).
5
See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 106 S.Ct. 2545, 91 L.Ed.2d 265 (1986).
5
reasonable jury could return a verdict for the nonmoving party.6
In making our determination, we must draw all justifiable
inferences in favor of the nonmoving party.7
B. THE RETALIATION CLAIM
1. Title VII and § 1981
At the district court level, Washington failed to allege a
retaliation claim against the defendants under either Title VII or
§ 1981. Instead, her complaint cited Title VII and § 1981 only
with respect to the Lottery’s alleged discrimination in failing to
promote her and later terminating her employment. Washington does
not appeal the district court’s dismissal of these discriminatory
acts claims; instead, on appeal, Washington attempts to argue the
applicability of Title VII and § 1981, in addition to § 1983, in
the context of her retaliation claim. As Washington cannot assert
a new claim for the first time on appeal, we need not consider the
possible merits of her argument.8 Having thus implicitly waived
retaliation under Title VII and § 1981, Washington’s retaliation
claim must either stand or fall in the context of § 1983 alone.
6
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
7
Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.
8
See Savers Federal Sav. & Loan Ass’n v. Reetz, 888 F.2d
1497, 1501 (5th Cir. 1989); McDonald v. Board of Mississippi Levee
Comm’rs, 832 F.2d 901, 909 (5th Cir. 1987).
6
2. Section 1983
Washington concedes that the Lottery is not a “person” for
purposes of ascribing liability under § 1983.9 Instead, she
focuses her argument on the Employees, whom she insists she sued in
both their official and individual capacities. Her insistence to
the contrary notwithstanding, we are convinced from our review that
Washington never sued the Employees in their individual capacities.
Washington fails to identify, and we are unable to locate on our
own, any indication in the record that she sued the Employees in
their individual capacities. In fact, the defendants noted in
their motion for summary judgment that they had been sued by
Washington only in their official capacities, which Washington
confirmed in her response, “Plaintiff in the case before the Bar
has indeed filed her action against the corporate entity as well as
the named individuals in their official capacities.”10 Washington
went on to indicate repeatedly in her response to the defendants’
summary judgment motion that she was seeking to establish liability
against the Employees only in their official capacities.11
We have not held expressly that a plaintiff’s complaint must
state or clearly indicate in precisely which capacity a public
9
See Will v. Department of State Police, 491 U.S. 58, 109
S.Ct. 2304, 105 L.Ed.2d 45 (1989).
10
Memorandum in Support of Plaintiff’s Response in Opposition
to Motion for Summary Judgment at 9.
11
Id. at 9-10.
7
official is being sued; nevertheless, Washington cannot be heard to
declare in the district court that she has not sued the Employees
in their individual capacities and then, after she loses at the
trial court level, state the exact opposite on appeal.
Washington’s allegations against the Employees are expressly
premised on their official activities as employees of the Lottery.
Therefore, recovery against the Employees must be in their official
capacities or not at all.12
Alternatively, Washington seeks to persuade us that she has
indeed stated a viable § 1983 claim against the Employees in their
official capacities because their actions do not entitle them to
qualified immunity. Washington misunderstands the law. A public
official sued in his individual capacity is entitled to qualified
immunity from suit under § 1983 unless it is shown by specific
allegations that the defendant violated clearly established
constitutional law.13 In contrast, a suit against a public official
in his official capacity is deemed to be a suit against the
entity.14 As Washington concedes (and Supreme Court precedent
clearly dictates) that there is no basis for § 1983 liability
12
See Harvey v. Blake, 913 F.2d 226 (5th Cir. 1990).
13
See, e.g., Burns-Toole v. Byrne, 11 F.3d 1270, 1273 (5th
Cir.), cert. denied, --U.S.--, 114 S.Ct. 2680, 129 L.Ed.2d 814
(1994); Saldana v. Garza, 684 F.2d 1159, 1162 (5th Cir. 1982),
cert. denied, 460 U.S. 1012, 103 S.Ct. 1253, 75 L.Ed.2d 481 (1983).
14
Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099,
3105, 87 L.Ed.2d 114 (1985).
8
against the Lottery itself, there can be none against its employees
in their official capacities.
D. THE CONSPIRACY CLAIM
Finally, regardless of whether some combination of the Lottery
and the Employees in fact retaliated against Washington, her
conspiracy claim is meritless. As the district court correctly
determined, neither the Lottery nor its Employees, while acting in
their official capacities, are “persons” under § 1985. Even if
that were not so, to state a conspiracy claim under § 1985,
Washington would have to show evidence that a conspiracy existed.
As the term suggests, a conspiracy requires the involvement of two
or more persons,15 and as the employees of an entity are not
considered to be “persons” separate from such entity for conspiracy
purposes,16 Washington could not and has not stated a claim
cognizable under § 1985.
III
CONCLUSION
For the reasons set forth above, the summary judgment granted
by the district court is
AFFIRMED.
15
See Hilliard v. Ferguson, 30 F.3d 649, 652 (5th Cir. 1994);
Green v. State Bar of Texas, 27 F.3d 1083, 1089 (5th Cir. 1994).
16
Hilliard, 30 F.3d at 653.
9