DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 24, 2007
No. 07-10126 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-01395-CV-JOF-1
NERESSA CARR,
Plaintiff-Appellant,
versus
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF
GEORGIA,
d.b.a. Kennesaw State University,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 24, 2007)
Before BIRCH, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
The plaintiff, Neressa Carr, appeals the district court’s grant of summary
judgment in favor of the defendant, the Board of Regents of the University System
of Georgia, on all of her claims. Carr alleges that the Board: (1) abridged her
rights to due process and equal protection, in violation of 42 U.S.C. § 1983; (2)
racially discriminated against her, in violation of Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000d et seq.; and (3) breached its contract with her, in violation
of state law. She filed suit in the Superior Court of Fulton County, Georgia,
seeking compensatory damages. The Board removed the matter to the United
States District Court for the Northern District of Georgia.
Carr, an African-American nursing student, was suspended for two years
from Kennesaw State University following allegations that she sold four stolen
textbooks back to the university bookstore, in violation of Sections III F and III G
of the Kennesaw student code of conduct. The complaint alleges that the Board
failed to follow the proper procedures at the disciplinary hearing and imposed the
two-year suspension because of her race.
The district court concluded, in granting the Board’s motion for summary
judgment, that: (1) Carr’s § 1983 claims were barred because the Board is not a
“person” subject to suit under that statute; (2) Carr’s Title VI claim raised no
genuine issue of material fact because she failed to present any evidence from
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which a reasonable jury could conclude that the defendant’s legitimate, non-
discriminatory reasons for her suspension were a pretext for intentional
discrimination; and (3) Carr’s state law contract claim raised no genuine issue of
material fact because she failed to present any evidence from which a reasonable
jury could conclude that the defendant breached a contract with Carr. We affirm
the district court’s grant of summary judgment for the Board on all of Carr’s
claims.
We review the grant of a motion for summary judgment de novo. Cruz v.
Publix Super Mkts., Inc., 428 F.3d 1379, 1382 (11th Cir. 2005). Summary
judgment is appropriate 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 “resolve all reasonable doubts about the facts in favor of the
non-movant, and draw all justifiable inferences in [her] favor.” Fitzpatrick v. City
of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) (quotation omitted). In opposing
the summary judgment motion, the non-movant “may not rest upon the mere
allegations or denials of the adverse party’s pleading, but the [non-movant’s]
response, by affidavits or as otherwise provided in this rule, must set forth specific
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facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).
Conclusory allegations based on subjective beliefs are insufficient to create a
genuine issue of material fact. Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217
(11th Cir. 2000).
Carr first contends that the district court erred in granting summary
judgment for the Board on her § 1983 due process and equal protection claims
because, according to her, there were genuine issues of material fact. Specifically,
Carr argues that the procedures used to determine her punishment denied her due
process, and that the two-year suspension denied her equal protection because its
duration was based on her race.
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. The plaintiff in a § 1983 civil rights action must show a
deprivation of a “federal right by a person acting under color of state law.” Griffin
v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). States and state
officials acting in their official capacities cannot be sued for money damages under
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§ 1983 because they are not considered to be “persons” for the purposes of the
statute. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312
(1989); see also Lapides v. Bd. of Regents, 535 U.S. 613, 617, 122 S. Ct. 1640,
1643 (2002) (“[A] State is not a “person” against whom a § 1983 claim for money
damages might be asserted.”).
Carr asserted in her complaint that the Board is a “governmental entity”
whose actions were official government actions that would be considered “state
action.” Because the Board is undeniably a state entity that was acting in its
official capacity, we agree with the district court that the Board is not a “person”
under the statute. See Lapides, 535 U.S. at 1643 (discussing that the plaintiff’s §
1983 claim against the Board of Regents of the University System of Georgia was
a claim against the State). Therefore, Carr’s § 1983 claims against the Board,
which were solely for money damages, must fail, and the district court properly
granted summary judgment for the Board on these claims.
Carr next contends that the district court erred by granting summary
judgment for the Board on her Title VI claim because there was a genuine issue of
material fact regarding whether the Board’s adverse treatment of Carr was based
on her race.
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.,
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“prohibits any recipient of federal financial assistance from discriminating on the
basis of race, color, or national origin in any federally funded program.” Burton v.
City of Belle Glade, 178 F.3d 1175, 1202 (11th Cir. 1999). To state a claim under
§ 601 of Title VI, “a plaintiff must establish discriminatory intent.” Id. (emphasis
in original). The Supreme Court has said that “the reach of Title VI’s protection
extends no further than the Fourteenth Amendment.” United States v. Fordice, 505
U.S. 717, 732 n.7, 112 S. Ct. 2727, 2737 n.7 (1992).
The parties and the district court analyzed Carr’s Title VI claim under the
McDonnell-Douglas burden-shifting analysis used for Title VII claims. However,
because Title VI provides no more protection than the Fourteenth Amendment’s
Equal Protection Clause, we have said that our Title VI analysis “duplicate[s]
exactly our equal protection analysis.” Elston v. Talladega County Bd. of Educ.,
997 F.2d 1394, 1405 n.11 (11th Cir. 1993). Therefore, we will examine whether
Carr has presented sufficient evidence to raise a genuine issue of material fact
under the familiar equal protection analysis.
The Fourteenth Amendment’s Equal Protection Clause provides that “[n]o
State shall . . . deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV. The Clause “directs that ‘all persons similarly
circumstanced shall be treated alike.’” Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct.
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2382, 2394 (1982) (quotation omitted). “But so too, ‘[t]he Constitution does not
require things which are different in fact or opinion to be treated in law as though
they were the same.’” Id. (quotation omitted, alteration in original).
In order to establish a violation of equal protection, a plaintiff must
demonstrate that the challenged action was motivated by an intent to discriminate.
Washington v. Davis, 426 U.S. 229, 239–48, 96 S. Ct. 2040, 2047–52 (1976).
“Discriminatory intent may be established by evidence of such factors as
substantial disparate impact, a history of discriminatory official actions, procedural
and substantive departures from the norms generally followed by the
decision-maker, and discriminatory statements in the legislative or administrative
history of the decision.” Elston, 997 F.2d at 1406.
Carr presented evidence that five white students accused of theft received
lesser sanctions than she did. She failed, however, to respond to the Board’s
evidence indicating that those punishments were mitigated because of the
individual circumstances of those students rather than their race. For instance, one
white student, referred to as Student No. 0203-079, was suspended for two
semesters following allegations that she stole items from her roommates and others
in student housing. The Board presented evidence that the student’s punishment
was less than that given to other students because she had immediately withdrawn
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from school and was institutionalized for serious mental illness. Carr was not
similarly situated to this student.
Another white student, referred to as Student No. 0506-011, was suspended
for two semesters after allegedly stealing folding tables and chairs from the student
center. The Board presented evidence that the student immediately took
responsibility for his misconduct and expressed “significant contrition” during the
disciplinary proceedings. The Board proved that unlike this student, Carr lied
during the disciplinary hearing, changing her story regarding how she obtained the
books, and that she continually denied any wrongdoing. Carr was not similarly
situated to this student.
A third white student, referred to as Student No. 0405-078, was given twenty
hours of community service after allegedly allowing stolen university signs
promoting Alcohol Awareness Week to be placed in his car. The Board presented
evidence that his conduct was a prank, and that the punishment was mitigated
because the student did not actually steal the signs, but only allowed them to be
placed in his car. Carr was not similarly situated to this student.
A fourth white student, referred to as Student No. 0506-011, was suspended
for one semester for allegedly stealing a laptop from the library. The Board
presented evidence that the student did not intend to steal the laptop but instead
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had failed to return it after it was due back in the library. This circumstance is
different than Carr’s because she actually sold the allegedly stolen textbooks back
to the university bookstore. Carr was not similarly situated to this student.
Finally, the Board dropped charges against a fifth white student, referred to
as Student No. 0405-181, who stole $285 in her role as treasurer of a student
organization. The Board presented evidence that the student resigned from her
position in the organization, wrote an apology, and returned the money. Carr did
not write an apology or return the money she received. Carr was not similarly
situated to this student.
Carr failed to present any evidence indicating that the sanctions imposed by
the Board in any of these cases were due to anything other than the individual
circumstances of the offense and the student. Moreover, in its motion for summary
judgment, the Board presented evidence that several white students who were
alleged to have engaged in theft actually were treated similarly to Carr. For
example, a white student, referred to as Student No. 0102-050, was suspended
from Kennesaw for a period of three years following allegations that she attempted
to steal books on three separate occasions from the university bookstore. Another
white student, referred to as Student No. 0203-131, was suspended for a period of
two years after allegedly stealing a purse and forging a check from the purse.
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For these reasons, Carr failed to present a genuine issue of material fact that
the Board treated similarly situated students of different races differently, in
violation of Title VI. The district court’s grant of summary judgment for the Board
was appropriate.
Finally, Carr contends that the district court erred by granting summary
judgment for the Board on her state law breach of contract claim. According to
Carr, the Board breached its contract with her by failing to abide by its own
judicial rules, regulations, and procedures. Specifically, Carr argues that the
Kennesaw undergraduate catalog formed a binding, written contract between
herself and the Board. She asserts that the Board breached this contract by failing
to give her a de novo review of the suspension by a three-member panel, by failing
to investigate the facts on appeal, and by imposing the sanction before the hearing
was held. We find no reversible error and affirm the district court.
“Under the doctrine of sovereign immunity, the state cannot be sued without
its consent.” State Bd. of Educ. v. Drury, 437 S.E.2d 290, 292 (Ga. 1993). Where
state sovereign immunity has not been waived, it applies to the Board. Ga. Code
Ann. § 20-3-36. The State of Georgia has waived sovereign immunity for written
contracts only: “The state’s defense of sovereign immunity is hereby waived as to
any action ex contractu for the breach of any written contract now existing or
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hereafter entered into by the state or its departments and agencies.” Ga. Const. art.
I, § 2, ¶ IX(c).
A written contract can consist of multiple documents “as long as all the
necessary terms are contained in signed contemporaneous writings.” Bd. of
Regents v. Tyson, 404 S.E.2d 557, 559 (Ga. 1991) (quotation omitted). To form a
valid contract, “there must be parties able to contract, a consideration moving to
the contract, the assent of the parties to the terms of the contract, and a subject
matter upon which the contract can operate.” Ga. Code Ann. §13-3-1. In Board of
Regents v. Tyson, the Georgia Supreme Court held that a patient’s hospital records
did not form a written contract between the patient and the treating hospital
because there were no signed contemporaneous writings indicating “consideration
moving to the contract.” 404 S.E.2d at 559 (quotation omitted).
Carr has presented no evidence from which a reasonable jury could conclude
that the undergraduate catalog formed a binding, written contract between herself
and the Board. Each version of the undergraduate catalog contained the statement
that it was for “informational purposes only and should not be construed as the
basis of a contract between a student and [the Board].” There is also no indication
of any signed contemporaneous writings between the parties indicating
“consideration moving to the contract.” See Tyson, 404 S.E.2d at 559. Therefore,
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even if any conduct by the Board arguably could have created a contract between
the parties, the breach of that contract is not enforceable against the Board because
the Board has not waived its sovereign immunity as to non-written agreements.
Carr’s reliance on Tyson and Federov v. Board of Regents, 194 F. Supp. 2d
1378 (S.D. Ga. 2002), is misplaced. Tyson merely held that, for the purposes of
state sovereign immunity, a written contract could be made up of multiple signed
contemporaneous documents. 404 S.E.2d at 558–59. And Federov does not
advance Carr’s claim because it simply restates the idea that the state of Georgia is
subject to liability for breach of contract only if the contract is in writing. 194 F.
Supp. 2d at 1394. Accordingly, the district court properly granted summary
judgment for the Board on Carr’s state law breach of contract claim.
AFFIRMED.
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