Ekaidi v. Board of Supervisors of the Southern University System et al
ORDER AND REASONS re 19 Motion for Summary Judgment. IT IS ORDERED that the motion is GRANTED and that the hostile workplace claim, the failure to promote retaliation claim, the failure to promote discrimination claim, and any state law claims ar e DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the 42 U.S.C. § 1985(3) claim and the Title VII retaliation claim premised on Ekaidi's removal from the SUNO hiring committee are DISMISSED WITH PREJUDICE. Signed by Judge Lance M Africk. (bwn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BOARD OF SUPERVISORS OF
THE SOUTHERN UNIVERSITY
SYSTEM ET AL.
ORDER AND REASONS
Before the Court is the defendants’ motion 1 for summary judgment. For the
following reasons, the motion is granted.
Summary judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any affidavits, the court determines
there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party seeking
summary judgment always 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.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not
produce evidence negating the existence of material fact, but need only point out the
absence of evidence supporting the other party’s case. Id.; Fontenot v. Upjohn Co.,
780 F.2d 1190, 1195 (5th Cir. 1986).
R. Doc. No. 19.
Once the party seeking summary judgment carries its burden pursuant to Rule
56, the nonmoving party must come forward with specific facts showing that there is
a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine dispute is not
satisfied by creating “some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a
genuine dispute of material fact exists when the “evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment
may not rest upon the pleadings, but must identify specific facts that establish a
genuine dispute. Id. The nonmoving party’s evidence, however, “is to be believed,
and all justifiable inferences are to be drawn in [the nonmoving party’s] favor.” Id.
at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
Plaintiff Ibrahim Ekaidi (“Ekaidi”) filed this lawsuit accusing the State of
Louisiana and certain faculty members of the Southern University at New Orleans
(“SUNO”) of discriminating against him because of his race, religion, ethnicity, and
He complains that defendants—allegedly a group of Nigerian
Christian faculty members and Nigerian Christian sympathizing faculty members at
SUNO—took adverse employment actions against him because he is a Syrian
Muslim. Specifically, Ekaidi alleges that defendants (1) conspired to discriminate
against him in violation of 42 U.S.C. § 1985(3); (2) discriminated against him by
removing him from a SUNO hiring committee in violation of Title VII; 2 (3)
discriminated against him and retaliated against him by denying him a promotion in
violation of Title VII; and (4) created a hostile work environment in violation of Title
VII. He also claims that these actions violated “applicable state law.” See R. Doc. No.
1, at 12-13.
To the extent Ekaidi suggested during a recent telephone conference that each
of the allegations advanced in support of his hostile work environment claim should
also be considered as stand-alone claims, see R. Doc. No. 37, the Court rejects that
argument for several reasons. First, the complaint—which actually identifies fewer
causes of action in the “Claims” section than the Court described above—cannot be
reasonably read in such a manner. Second, even if the complaint could be interpreted
in that manner, Ekaidi has failed to satisfy the administrative exhaustion
Although Ekaidi’s EEOC charge characterizes the defendants’ actions with regard
to the hiring committee as constituting both discrimination and retaliation, the Court
concludes that the only allegation in the complaint properly characterized as a
retaliation claim is the claim that Ekaidi was denied a promotion. Indeed, in order
to advance a retaliation claim, the alleged adverse employment action must have
been taken in retaliation for the plaintiff’s engagement in a protected activity. See
Mitchell v. U T L X Mfg., L.L.C., 569 F. App’x 228, 230 (5th Cir. 2014). “Protected
activity is defined as opposition to any practice rendered unlawful by Title VII,
including making a charge, testifying, assisting, or participating in any investigation,
proceeding, or hearing under Title VII.” Id. at 231 (quotations and citation omitted).
The only “protected activity” described in the complaint is Ekaidi’s filing of the EEOC
charge. See generally R. Doc. No. 1. As the EEOC charge was filed in response to
Ekaidi’s removal from the committee, the removal itself cannot have been taken in
retaliation for engagement in protected activity. Accordingly, the removal from the
hiring committee can only be viewed as a Title VII discrimination claim—not a Title
VII retaliation claim.
requirement as to any allegation which does not pertain to his removal from the
hiring committee. Third, apart from the defendants’ alleged failure to promote him,
none of the individual acts Ekaidi identifies in support of his hostile work
environment claim can be considered actionable “adverse employment actions” under
Title VII. Being prevented from attending academic conferences and being denied
positions on committees, for example, are not adverse employment actions in this
The defendants first argue that the claims should be dismissed because Ekaidi
failed to exhaust his administrative remedies.
Before filing a Title VII claim,
“complaining employees must exhaust their administrative remedies by filing a
charge of discrimination with the EEO division of their agency.” Pacheco v. Mineta,
448 F.3d 783, 788 (5th Cir. 2006) (citation omitted). Because the Court lacks subject
matter jurisdiction over any claims for which plaintiff did not exhaust his
administrative remedies, see Tolbert v. United States, 916 F.2d 245, 247 (5th Cir.
1990), the Court addresses this issue first.
It is undisputed that Ekaidi filed a discrimination charge with the EEOC prior
to initiating this action. Nonetheless, the defendants argue that the claims advanced
in the charge are distinct from the claims advanced in this lawsuit and, therefore, the
exhaustion requirement has not been satisfied.
The Supreme Court has instructed that “[e]ach incident of discrimination and
each retaliatory adverse employment decision” constitutes a separate actionable
“unlawful employment practice” for which administrative remedies must be
exhausted. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002); see
also Freppon v. City of Chandler, 528 F. App’x 892, 899 (10th Cir. 2013). Each
discrete act—such as “termination, failure to promote, denial of transfer, or refusal
to hire”—must be timely challenged and exhausted before the Court will consider
that act as the basis for an independent claim. See id.
When deciding whether a particular Title VII claim was included in the
administrative charge, “the scope of an EEOC complaint should be construed
liberally” because most charges are filed pro se. See Pacheco, 448 F.3d at 788. The
Court’s review is defined “not solely by the scope of the administrative charge itself,
but by the scope of the EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination.” Id. at 789 (quotations omitted).
Ekaidi’s charge stated, in pertinent part:
I was hired by Southern University at New Orleans more recently as a Tenured
Associate Professor of Biology. During my employment, I was subjected to
harassment in that I was singled out of a nine person hiring committee by a
Hindu Department Head, accused of deceit, dishonesty, aiding and abetting
mediocrity. I was given a letter of reprimand and warned that discharge might
follow. In addition, I was also disciplined.
No reason was given for the action taken against me.
I believe I have been discriminated against because of my National Origin,
Arab/Afghani/Mid Eastern and retaliated against in violation of Title VII of
the Civil Rights Act of 1964, as amended.
R. Doc. No. 19-4, at 2. In an addendum to the charge, Ekaidi wrote:
The administrative reprimands and threats of termination involved the only
two Muslims on the nine-person search and evaluation committee. There
seems to be no factual dispute that the collaborative procedures followed in the
May 16, 2014 selection process were exactly the same as procedures followed
in earlier selection committees. At any rate the selection process had
traditionally been a collaborative on both at Southern University at New
Orleans (SUNO) and at other institutions of higher education in the New
Orleans area. The random accusations leveled at both Ekaidi and Atteia were
preposterous, at best, and were the barest fig-leaf for open hostility and
intimidation on the part of the SUNO administration against two wellqualified and respected faculty members who happened to profess the Muslim
The evaluations of Ekaidi and Atteia were excluded and the original evaluation
scores were altered in such a way as to exclude from the interview process two
Muslim candidates whom the committee as a whole had previously highly
endorsed for interviews. As a direct result two highly qualified Muslim
candidates for faculty positions were excluded from the interview process by
administrative measures obviously motivated by impermissible considerations
of race, religion and ethnic origin.
This incident comes in the context of ongoing student complaints about Federal
grant money being awarded to Nigerian students at the expense of highly
qualified native African-American students.
R. Doc. No. 19-4, at 3.
The defendants admit that the charge encompasses Ekaidi’s claim that the
defendants discriminated against him by removing him from the SUNO hiring
committee. See R. Doc. No. 37, at 1. Although neither the charge nor the addendum
specifically mentions that Ekaidi was removed from the hiring committee, the Court
agrees that the removal claim should be considered exhausted. After all, it is difficult
to see how “the scope of the EEOC investigation which [could] reasonably be expected
to grow out of” the charge’s allegations could not have resulted in the EEOC’s review
of Ekaidi’s claim that his committee membership was terminated. See Pacheco, 448
F.3d at 789. 3
For the following reasons, however, the Court finds the removal
allegation to be the only Title VII violation encompassed by the EEOC charge.
All of the factual allegations in the charge pertain to the defendants’ purported
decision to remove Ekaidi from the committee on pretextual grounds in order to
exclude Muslims from the hiring process. Notably absent from the charge are most
of the allegations in Ekaidi’s complaint. The charge nowhere mentions that Ekaidi
was denied a promotion. It does not describe the alleged pattern of abusive conduct
to which Ekaidi was subjected each time he applied for a promotion. It does not
mention the incident which Ekaidi alleges occurred when he applied for a leave of
absence to visit Syria. It does not mention that Ekaidi was denied other committee
assignments or that he was denied research work.
“[A] primary purpose of Title VII is to trigger the investigatory and conciliatory
procedures of the EEOC, in attempt to achieve non-judicial resolution of employment
discrimination claims.” Pacheco, 448 F.3d at 788-89 (citation omitted). This Court
cannot permit a Title VII claim to advance unless “the EEOC has first had the
opportunity to attempt to obtain voluntary compliance.”
Id. at 789 (quotations
While the defendants admit that the hiring committee claim is exhausted, they take
the position that the complaint does not challenge Ekaidi’s removal from the hiring
committee. Although it is true that Ekaidi does not list his removal from the hiring
committee as a distinct claim under the “Claims” section of his complaint, see R. Doc.
No. 1, at 11-14, elsewhere the complaint mentions his removal from the hiring
committee as a form of Title VII discrimination, see, e.g., R. Doc. No. 1, at 2 ¶ 1. The
complaint makes adequately clear that Ekaidi intended the removal claim to be
The majority of the factual allegations described in the complaint in
support of the hostile work environment claim relate to the defendants’ alleged
failure to promote Ekaidi. See R. Doc. No. 1, at 13 ¶ 38-39. The remaining allegations
in the complaint in support of the hostile work environment claim are allegations that
Ekaidi was systematically shunned, that he was excluded from committee and
research work, and that the defendants conducted regular informal meetings in
furtherance of their discrimination.
As established in the preceding paragraphs, the EEOC charge does not
mention the failure to promote or, indeed, any of the other allegations described in
support of the hostile work environment claim. See R. Doc. No. 19-4, at 3. The EEOC
could not have reasonably been expected to investigate the hostile work environment
claim during the administrative proceedings. While Ekaidi devotes a substantial
part of of his brief to arguing that the hostile work environment claim should be
considered timely because it was a “continuing violation,” see R. Doc. No. 33, at 1216, it is not the timeliness of his claim which is being challenged here. 4 In sum,
because the hostile work environment claim was not encompassed by Ekaidi’s EEOC
charge, this Court lacks subject matter jurisdiction to consider it.
The same is true with respect to Ekaidi’s accusation that he was wrongfully
denied a promotion. Ekaidi nonetheless protests that his retaliation claim falls
Ekaidi’s brief also inexplicably devotes an extended paragraph to setting forth the
elements of a Title VII sexual discrimination claim, see R. Doc. No. 33, at 15-16, even
though there is no allegation of sexual discrimination in this case.
within the Gupta exception to the exhaustion requirement.
misunderstands the scope of that exception. “The Gupta exception allows a plaintiff
to proceed in district court on an unexhausted retaliation claim if that claim is
alleging retaliation for properly bringing an exhausted claim before the district
court.” Sapp v. Potter, 413 F. App’x 750, 752 (5th Cir. 2011) (citing Gupta v. E. Tex.
State Univ., 654 F.2d 411, 414 (5th Cir. 1981)).
In other words, the exception
eliminates the exhaustion requirement for retaliation claims “growing out of an
earlier charge.” See Gupta, 654 F.2d at 414.
Critically, however, the Fifth Circuit “has not applied the Gupta exception to
claims in which both retaliation and discrimination are alleged.” Simmons-Myers v.
Caesars Entm’t Corp., 515 F. App’x 269, 273 (5th Cir. 2013) (citations omitted); see
also Sapp, 413 F. App’x at 752-53. If the plaintiff’s complaint alleges that an adverse
employment action was taken not only as retaliation but also as a form of
discrimination, dismissal of the discrimination claim and the retaliation claim is
required. The reason is that dismissing only the discrimination claim and permitting
simultaneous proceedings before this Court and the EEOC for the same inciting event
would “thwart the administrative process and peremptorily substitute litigation for
conciliation.” See McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008). 5
In Sapp, for example, the Fifth Circuit held that the Gupta exception did not apply
where the plaintiff alleged that the Postal Service had terminated her employment
both because she had filed a charge with the EEO and because “it was discriminating
on the basis of race, sex, and disability.” See Sapp, 413 F. App’x at 751, 752-53.
The complaint alleges that the defendants denied Ekaidi a promotion to full
professor in retaliation for his filing a complaint with the EEOC. See R. Doc. No. 1,
at 13 ¶ 36-37. Tellingly, however, Ekaidi titled this section of his complaint “Title
VII Discrimination and Retaliation,” R. Doc. No. 1, at 13 (emphasis added), and
elsewhere the complaint alleges that “Ekaidi had his job overtly threatened, his place
on a recruitment committee forfeited and his well-qualified application for promotion
rejected mainly on the basis of his ethnicity and religion,” R. Doc. No. 1, at 7 ¶ 20
(emphasis added). The complaint continues: “The evaluation process in effect in the
Natural Sciences Department in the years 2011 to 2015 was riddled with favoritism
based on religion and ethnicity.
Analysis of tenure and promotion votes by
nationality show extreme partiality when judging areas such as research and
publication. The partiality rises to the level of arbitrariness, where the best predictor
of an individual’s score is the nationality/religion of the applicant and the
nationality/religion of the evaluator.” R. Doc. No. 1, at 8 ¶ 23. At one point, the
complaint bluntly alleges that the defendants violated Title VII by “denying Ekaidi
his promotion to full professor on the basis of his religion and/or his nationality and/or
his ethnicity.” See R. Doc. No. 1, at 12 ¶ 35. 6
The fact that Ekaidi’s Title VII retaliation claim overlaps with a Title VII
discrimination claim is further supported by the complaint’s allegation that Ekaidi
was wrongfully denied advancement from 2011 to 2015. As Ekaidi filed his EEOC
charge in January 2015, see R. Doc. No. 19-4, at 2, Ekaidi’s claim that he was
wrongfully denied promotion in the years preceding 2015 cannot be characterized as
solely a retaliation claim.
Because Ekaidi advances both a Title VII retaliation claim and a Title VII
discrimination claim based on the same inciting event—his failure to receive a
promotion—Ekaidi cannot take advantage of the Gupta exception to avoid the
exhaustion requirement. The EEOC must first have an opportunity “to attempt to
obtain voluntary compliance,” Pacheco, 448 F.3d at 789 (quotations omitted), before
this Court can consider the failure-to-promote retaliation claim and the failure-topromote discrimination claim.
Ekaidi’s only remaining Title VII claim is his discrimination claim premised
on his removal from the SUNO hiring committee. The defendants argue that Ekaidi
cannot make out a prima facie case of discrimination. For the following reasons, the
A plaintiff who seeks to prove that his employer discriminated against him in
violation of Title VII can do so by submitting either direct evidence of intentional
discrimination or, more commonly, circumstantial evidence. See Laxton v. Gap Inc.,
333 F.3d 572, 578 (5th Cir. 2003). Because Ekaidi offers only circumstantial evidence
in support of his claim, the three-part framework established in McDonnell Douglas
v. Green, 411 U.S. 792 (1973), applies. Septimus v. Univ. of Houston, 399 F .3d 601,
608-09 (5th Cir. 2005). First, the plaintiff must make out a prima facie case of
employment discrimination by proving that he:
(1) is a member of a protected group; (2) was qualified for the position at issue;
(3) was discharged or suffered some adverse employment action by the
employer; and (4) was replaced by someone outside his protected group or was
treated less favorably than other similarly situated employees outside the
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (per curiam) (citations
omitted); see also Paske v. Fitzgerald, 785 F.3d 977, 985 (5th Cir. 2015).
If the plaintiff carries his burden, a presumption arises that the employer
unlawfully discriminated against him. See Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981).
The defendants, in turn, may rebut this
presumption by articulating “a legitimate, nondiscriminatory reason for [their]
decision.” Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000)
(citing McDonnell Douglas, 411 U.S. at 802). If the defendants produce evidence of a
nondiscriminatory reason for the alleged unlawful action, the burden shifts back to
the plaintiff to prove that “the employer’s proffered reason is not true but instead is
a pretext for the real discriminatory . . . purpose.” McCoy, 492 F.3d at 557 (citation
omitted). The plaintiff may do so either “through evidence of disparate treatment or
by showing that the employer’s proffered explanation is false or unworthy of credence,
meaning that the explanation is not the real reason for the adverse employment
action.” Laxton, 333 F.3d at 578 (quotations omitted).
This Court does not view Ekaidi’s removal from the SUNO hiring committee
as an “adverse employment action.”
The Fifth Circuit has adopted a “strict
interpretation” of the adverse employment element, whereby an employment action
“that does not affect job duties, compensation, or benefits” is not an adverse
employment action. See Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004)
(quotations omitted). An adverse employment action consists of “decisions such as
hiring, granting leave, discharging, promoting, and compensating,” see id. (quotations
omitted), because “Title VII was only designed to address ultimate employment
decisions, not to address every decision made by employers that arguably might have
some tangential effect upon those ultimate decisions,” Burger v. Cent. Apartment
Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999) (emphasis in original) (quotations
Ekaidi admitted during his deposition that participation on the hiring
committee is voluntary and that faculty members do not receive extra compensation
for their participation. See R. Doc. No. 19-6, at 26 ll 20-22. Ekaidi further admitted
that being a member of the committee earns a professor “zero point[s]” in his
application for a promotion. See R. Doc. No. 19-6, at 27 ll 2-7, 10-14. Only the Chair
of the committee receives a benefit from his committee participation when being
considered for promotion. See R. Doc. No. 19-6, at 27 ll 6-9. Indeed, this Court has
located nothing in the record—and Ekaidi has identified nothing—to suggest that
membership on the committee affects hiring, granting leave, discharging, promoting,
or compensating in any way. As such, the Court is of the opinion that Ekaidi’s
removal from the committee was not an adverse employment action within the strict
interpretation adopted by the Fifth Circuit.
But even assuming that Ekaidi did suffer an adverse employment action and
that Ekaidi can satisfy the other elements of a Title VII prima facie case, Ekaidi still
has not demonstrated that the defendants’ proffered reason for removing him from
the committee was pretextual.
Defendants have rebutted the presumption that
discrimination occurred by articulating “a legitimate, nondiscriminatory reason for
[their] decision,” Russell, 235 F.3d at 222 (citation omitted), i.e., that Ekaidi was
removed from the hiring committee for improperly copying the candidate evaluations
of another committee member.
The members of the hiring committee were asked by its Chair, defendant Joe
Omojola, to independently assess the credentials of candidates for hire.
Committee would then assemble at a specified time to discuss the candidates,
tabulate a summary calculation, and make a recommendation as a group. Ekaidi, by
his own admission, felt rushed when reviewing candidates because the deadline for
providing his feedback to the committee coincided with final exam week. See R. Doc.
No. 19-6, at 9 ll 11-20. Ekaidi asked another committee member, Professor Bashir
Atteia, to share her candidate evaluations with him. A comparison of Professor
Atteia’s evaluations, R. Doc. No. 19-6, at 28, and Ekaidi’s evaluations, R. Doc. No. 196, at 29, revealed that they are almost identical. When the committee realized as
much, they removed Ekaidi and Professor Atteia from the committee and did not
consider their scores when evaluating candidates. See R. Doc. No. 19-7, at 2.
Because the defendants have advanced a non-discriminatory reason for
removing Ekaidi from the committee, the burden shifts to Ekaidi to demonstrate that
“the employer’s proffered reason is not true but instead is a pretext for the real
discriminatory . . . purpose.” McCoy, 492 F.3d at 557 (citation omitted). “To carry
this burden, the plaintiff must produce substantial evidence” that rebuts the
proffered reason. Laxton, 333 F.3d at 578 (citation omitted). A plaintiff may do so
“either through evidence of disparate treatment or by showing that the employer’s
proffered explanation is false or unworthy of credence.” Id. (quotations omitted). “An
explanation is false or unworthy of credence if it is not the real reason for the adverse
employment action.” Id. (citation omitted).
First, Ekaidi “has not shown disparate treatment, because [he] has not
presented any similarly situated comparators.” See Outley v. Luke & Assocs., Inc.,
840 F.3d 212, 218 (5th Cir. 2016). Second, Ekaidi has not introduced substantial
evidence showing that the defendants’ proffered reason is false or unworthy of
credence. To the contrary, the authority cited in the defendants’ brief establishes in
minute detail that Ekaidi copied Professor Atteia’s evaluations. Although Ekaidi
emphasizes that he was subsequently exonerated of any wrongdoing by a faculty
committee, see R. Doc. No. 33, at 11, that exoneration does not constitute “substantial
evidence” that the hiring committee’s stated reason for removing Ekaidi and
Professor Atteia was pretextual. After all, Ekaidi does not claim that the subsequent
investigation found wrongdoing on behalf of the hiring committee, and he cannot
refute that the two evaluations are practically identical. Even if he disagrees with
the defendants’ characterization of his actions, Ekaidi fails to provide substantial
summary judgment evidence that the employer’s proffered reason was pretextual.
See McCoy, 492 F.3d at 557 (citation omitted).
Even if Ekaidi had introduced sufficient evidence establishing that the
defendants’ proffered reason for removing him was pretextual, he creates at most “a
weak issue of fact as to whether the employer’s reason was untrue,” and “there [is]
abundant and uncontroverted evidence that no discrimination occurred.” See Laxton,
333 F.3d at 578 (citation omitted).
As such, summary judgment would still be
“A decision as to whether judgment as a matter of law is appropriate ultimately
turns on the strength of the plaintiff’s prima facie case, the probative value of the
proof that the employer’s explanation is false, and any other evidence that supports
the employer’s case and that properly may be considered on a motion for judgment as
a matter of law.” See id. at 579 (quotations omitted). The strength of the defendants’
proffered reason for terminating Ekaidi compels the Court to conclude that no
genuine dispute of material fact exists as to this Title VII claim. Ekaidi simply cannot
carry his burden in light of the strong record evidence documenting the reason for his
removal from the hiring committee. As such, this claim must be dismissed.
While Ekaidi’s conspiracy claim under 42 U.S.C. § 1985(3) does not fall under
Title VII and contains no exhaustion requirement, the U.S. Supreme Court has
specifically recognized that Section 1985(3) claims cannot be used to circumvent the
exhaustion requirements of Title VII. As the Court wrote in Great American Federal
Saving & Loan Association v. Novotny:
If a violation of Title VII could be asserted through § 1985(3), a complainant
could avoid most if not all of these detailed and specific provisions of the law.
Section 1985(3) expressly authorizes compensatory damages; punitive
damages might well follow. The plaintiff or defendant might demand a jury
trial. The short and precise time limitations of Title VII would be grossly
altered. Perhaps most importantly, the complaint could completely bypass the
administrative process, which plays such a crucial role in the scheme
established by Congress in Title VII . . . .
[W]e conclude that § 1985(3) may not be invoked to redress violations of Title
VII. It is true that a § 1985(3) remedy would not be coextensive with Title VII,
since a plaintiff in an action under § 1985(3) must prove both a conspiracy and
a group animus that Title VII does not require. While this incomplete
congruity would limit the damage that would be done to Title VII, it would not
eliminate it. Unimpaired effectiveness can be given to the plan put together by
Congress in Title VII only by holding that deprivation of a right created by
Title VII cannot be the basis for a cause of action under § 1985(3).
442 U.S. 366, 375-378 (1979) (citations omitted).
Ekaidi does not address Great American in his brief. Nevertheless, the Fifth
Circuit continues to recognize Great American as binding law. See Washington v.
Atmos Energy Corp., No. 07-50296, 2007 WL 2493492, at *1 (5th Cir. Sept. 4, 2007)
(affirming dismissal of a Section 1985(3) conspiracy claim under Great American).
Accordingly, the Section 1985(3) claim that defendants conspired to violate Title VII
must be dismissed with prejudice.
But the complaint also advances a Section 1985(3) claim that the defendants
conspired to deny Ekaidi his right to equal protection under the U.S. Constitution.
See R. Doc. No. 1, at 11-12 ¶ 33. The Fifth Circuit has held that the same set of facts
can give rise to both a Section 1985(3) claim and a Title VII claim as long as the
Section 1985(3) conspiracy claim alleges the violation of a right other than a right
created by Title VII. See Southard v. Texas Bd. of Crim. Justice, 114 F.3d 539, 54950 (5th Cir. 1997). The right to sue based on discrimination in the private workplace
is created by Title VII. See Shelley v. Kraemer, 334 U.S. 1, 13 (1948) (The Fourteenth
discriminatory or wrongful”); Ratliff v. City of Milwaukee, 795 F.2d 612, 624 (7th Cir.
1986). But the right to be free from such discrimination in the public workplace is
created by the Constitution. See Southard, 114 F.3d at 549-550 (“[T]he Constitution
provides a right independent of Title VII to be free from race discrimination by a
public employer.” (citations omitted)). Accordingly, in Southard, the Fifth Circuit
recognized that a public employee had an independent right to equal protection under
the Fourteenth Amendment that was sufficient to invoke section 1983 and section
1985 remedies in addition to the Title VII claim. See id. at 550 (emphasis added).
Ekaidi is a public employee. As such, he can theoretically assert a Section
1985(3) conspiracy claim in conjunction with a Title VII claim. However, Ekaidi’s
Section 1985(3) claim cannot survive summary judgment because he has failed to
advance a prima facie case. To state a cognizable claim under Section 1985(3), a
plaintiff must allege: (1) a conspiracy between two or more individuals; (2) for the
purpose of depriving a person or class of people of the equal protection of the laws or
of equal privileges and immunities under the laws; and (3) an act committed in
furtherance of the conspiracy that injures a person or deprives him of a right or
privilege of a citizen of the United States. See Anderson v. City of Dallas, 116 F. App’x
19, 32 (5th Cir. 2004). In this circuit, the only type of conspiracy actionable under
Section 1985(3) is one motivated by racial animus. Id. Accordingly, Ekaidi’s claims
that the defendants conspired against him because of his ethnicity, religion, and
national origin must be dismissed.
With respect to Ekaidi’s remaining Section 1985(3) claim that the defendants
conspired against him because of his race, the Court also concludes that the claim
should be dismissed. As a number of courts have recognized in a similar context,
school faculty members and administrators are usually considered a “single entity”
that is incapable of conspiring with itself for the purposes of Section 1983 and 1985(3)
claims. See Reynosa v. Wood, 134 F.3d 369, at *2 (5th Cir. 1997) (per curiam)
(gathering cases). 7 As the Fifth Circuit wrote in Reynosa, “where all of the defendants
are members of the same collective entity, the conspiracy does not involve two or more
people.” Id. at *2; see also Hardesty v. Waterworks Dist. No. 4 of Ward Four, 954 F.
Supp. 2d 461, 474 (W.D. La. 2013) (recognizing continued vitality of rule). As all of
the defendants in this case are faculty members and administrators at SUNO, the
Section 1985(3) claim should be dismissed.
Finally, the complaint alleges that Ekaidi asserts claims under “applicable
state law.” See R. Doc. No. 1, at 13 ¶ 36. The complaint nowhere identifies a specific
cause of action.
Neither does the plaintiff’s briefing in response to defendants’
motion. Accordingly, the unidentified and un-argued state law claims are dismissed
without prejudice. 8
See, e.g., Moody v. Jefferson Parish Sch. Bd., 803 F. Supp. 1158, 1166 (E.D. La. 1992)
(school board, principal, vice-principal, and various teachers are all employed by the
Jefferson Parish School Board and are therefore a single entity) aff’d, 2 F.3d 604 (5th
Cir. 1993); Hankins v. Dallas Indep. Sch. Dist., 698 F.Supp. 1323, 1330 (N.D. Tex.
1988) (high school and its officials constitute a single entity); Chambliss v. Foote, 421
F. Supp. 12, 15 (E.D. La. 1976) (“[T]he university and its officials are considered as
constituting a single legal entity which cannot conspire with itself.”) aff’d, 562 F.2d
1015 (5th Cir. 1977), cert. denied, 439 U.S. 839 (1978).
8 In the non-federal employer context, some courts have recognized that state law
claims arising out of the same conduct that constitutes the Title VII violation are
preempted by Title VII. See Goins v. Hitchcock Indep. Sch. Dist., 191 F.Supp.2d 860,
For the foregoing reasons,
IT IS ORDERED that the motion is GRANTED and that the hostile
workplace claim, the failure to promote retaliation claim, the failure to promote
discrimination claim, and any state law claims are DISMISSED WITHOUT
IT IS FURTHER ORDERED that the 42 U.S.C. § 1985(3) claim and the Title
VII retaliation claim premised on Ekaidi’s removal from the SUNO hiring committee
are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, February 22, 2017.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
871–72 (S.D. Tex. 2002). Other courts disagree. See Johnson v. Blue Cross/Blue
Shield of Texas, 375 F. Supp. 2d 545, 548 (N.D. Tex. 2005). The Court need not weigh
in on that dispute, as the plaintiff’s failure to identify a cause of action and his failure
to brief any cause of action is sufficient to warrant dismissal of the state law claims.
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