UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30381
Summary Calendar
CARL A. ROBERTSON, on behalf of himself
and all others similarly situated,
Plaintiff-Appellant,
versus
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AGRICULTURAL
AND MECHANICAL COLLEGE; MERVIN TRAIL, Chancellor; RON GARDNER,
Vice-Chancellor; FLORA G. MCCOY, Human Resources Manager; ALBERT
LAVILLE, Louisiana State University Police; LESLYE ANN BASS,
Chief of Police,
Defendants-Appellees.
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
(99-CV-1688-T)
_________________________________________________________________
September 20, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Carl A. Robertson appeals, pro se, the summary judgment
granted the Board of Supervisors of Louisiana State University
Agricultural and Mechanical College and the dismissal of all claims
against the individual Defendants under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Robertson claimed violations of
42 U.S.C. §§ 1981 and 1983, as well as Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e—2000e-17.
*
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this opinion should not be published and is not precedent except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.
The district court dismissed the §§ 1981 and 1983 claims
against the individual Defendants on concluding the allegations
supporting those theories were not distinct from those alleged in
support of the Title VII claim. The Title VII claim was also
dismissed as to the individual Defendants because LSU, not the
individual Defendants, was Roberson’s employer. Summary judgment
was awarded LSU on all claims on the basis that Robertson failed to
prove a prima facie case of retaliation. Robertson asserts four
reasons why the judgment should be reversed.
We review a grant of summary judgment de novo applying the
identical standard used by the district court. E.g., Stewart v.
Murphy, 174 F.3d 530, 533 (5th Cir.), cert. denied, 528 U.S. 906
(1999). Summary judgment should be granted if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). We “view
the pleadings and summary judgment evidence in the light most
favorable to the nonmovant.” Stewart, 174 F.3d at 533.
We review de novo a Rule 12(b)(6) dismissal. Atkins v.
Hibernia Corp., 182 F.3d 320, 323 (5th Cir. 1999); General Star
Indem. Co. v. Vesta Fire Ins. Corp., 173 F.3d 946, 949 (5th Cir.
1999). All facts pled in the complaint must be considered true,
and the complaint “must be liberally construed in favor of the
plaintiff”. Brown v. Nationsbank Corp., 188 F.3d 579, 585 (5th
Cir. 1999), cert. denied, 530 U.S. 1224 (2000). Dismissal is
improper “‘unless it appears beyond doubt that the plaintiff can
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prove no set of facts in support of his claim which would entitle
him to relief.’” Id. at 586 (quoting Conley v. Gibson, 355 U.S.
41, 45-46 (1957)).
Robertson first asserts that the district court improperly
found his Title VII claim preempted his §§ 1981 and 1983 claims as
they were predicated upon the same facts. The district court
relied on Parker v. Miss. State Dep’t of Pub. Welfare, 811 F.2d
925, 927 n. 3 (5th Cir. 1987), in concluding consideration of
remedies other than Title VII “is necessary only if their violation
can be made out on grounds different from those available under
Title VII”. Id. Although the district court was correct that
Robertson made no distinction in his factual allegations between
his § 1981 and 1983 claims and his Title VII claim, subsequent
decisions of our court have made it clear that Parker does not hold
that Title VII is the exclusive remedy for race based employment
discrimination. See Johnston v. Harris County Flood Control Dist.,
869 F.2d 1565, 1575-76 (5th Cir. 1989), cert. denied, 493 U.S. 1019
(1990); Hernandez v. Hill Country Tel. Coop., Inc., 849 F.2d 139,
142-43 (5th Cir. 1988); see also Southard v. Tex. Bd. of Criminal
Justice, 114 F.3d 539, 548-50 (5th Cir. 1997). Instead, footnote
3 in Parker has been interpreted as follows:
In Parker we did no more than limit our
appellate review of the denial of Title VII
relief to the facts alleged in support of that
claim, doing so because the claims alleged
under Title VII and § 1981 were provable by
the same facts. Thus a finding of liability
or non-liability under one statute satisfied
the other. Parker does not stand for the
proposition, nor could it properly do so, that
a claimant alleging racial discrimination in
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an employment setting is limited to recovery
under Title VII.
Hernandez, 849 F.2d 139, 142-43 (citation omitted). Because the
district court found that recovery against the individual
Defendants was foreclosed under Title VII on the basis that they do
not meet the statutory definition of an employer, the district
court should have considered Robertson’s alternative theories of
recovery, even though such theories are supported by the same
factual allegations as the Title VII claim. Therefore, we remand
for an adjudication of the individual Defendants’ Motion to Dismiss
in regard to Robertson’s §§ 1981 and 1983 claims.
Robertson next contends the district court narrowly construed
his allegations and his evidentiary submissions and drew all
inferences against him, relying on irrelevant factors and evidence
not supported by the record. Robertson has not identified which
factual allegations and evidentiary submissions the district court
narrowly construed, nor the inferences drawn against him.
Robertson also does not identify the evidence the district court
improperly relied upon, other than to allege that Defendants filed
untimely witness and exhibit lists. In granting summary judgment
in favor of LSU and dismissing the claims against the individual
Defendants, the district court did not draw improper inferences or
rely upon improper evidence.
Robertson also contends the district court improperly denied
his cross motion for summary judgment and failed to consider the
documents submitted with his complaint when ruling on the
individual Defendants’ Rule 12(b)(6) motion to dismiss. After
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reviewing Robertson’s motion for summary judgment, the motion was
correctly denied. As for the dismissal of the individual
Defendants, assuming the district court did not consider the
attachments to the Second Amended Complaint, the attachments
include a letter from Robertson to counsel for Defendants, letters
from Robertson to two United States Senators, a letter from
Robertson to the former Vice President of the United States, and a
letter from Robertson to the Equal Employment Opportunity
Commission. These letters in no way impact the dismissal of the
individual Defendants.
Finally, Robertson maintains the district court did not
liberally construe his pro se complaint. See, e.g., Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Moore v. McDonald, 30 F.3d
616, 620 (5th Cir. 1994); Covington v. Cole, 528 F.2d 1365, 1370
(5th Cir. 1976). The most liberal reading of Robertson’s Second
Amended Complaint in no way invalidates the district court’s
rulings.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
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