United States Court of Appeals,

Fifth Circuit.

No. 93-2202.

Peggy L. BURNS-TOOLE, D.D.S., Plaintiff-Appellant,

v.

Roger P. BYRNE, D.D.S. and Ronald H. Shamblin, D.D.S., Defendants-Appellees.

Jan. 19, 1994.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, HIGGINBOTHAM, and SMITH, Circuit Judges.

WISDOM, Circuit Judge:

In this case we address allegations by an applicant for a dental license that she suffered

religious discrimination in the course of the testing process. Because we can find no evidence upon

which such allegations might properly be based, we affirm the district court's dismissal of her claims

and grant of summary judgment.

I.

The plaintiff/appellant, Dr. Peggy Burns-Toole, is an African

- American, Seventh-Day

Adventist. She is a graduate of the School of Dentistry at Meharry Medical College in Tennessee and

has been licensed to practice dentistry in Illino is since 1986. At the time of the incidents at issue, the

defendants/appellees, Dr. Roger Byrne and Dr. Ronald Shamblin were app o int ed members of the

Texas State Board of Dental Examiners ("T.S.B.D.E.").

Dr. Burns-Toole moved from Illino is to Texas and applied to take the August 1990 state

dental examination. The test was to be given on Thursday, August 23 through Saturday, August 25,

1990. Burns-Toole filed a written request for an examination variance because any work by her on

the evening of the 24th and the day of the 25th conflicted with the tenets of her religion. The board

granted her request. She took the remaining portions of the examination on Wednesday, August 22,

1990.

Dr. Shamblin graded a porti on of her examination taken on one of the regularly scheduled1 It takes three examiners to agree on an applicant's failure.

2 An applicant must formulate a diagnosis and treatment plan for a patient based upon a set of

x-rays. The radiograph is the result. days. He knew her only as "Applicant # 7" and had no access to information on her religio us

background.

During the examination, Dr. Burns-Toole's equipment malfunctioned. Although she lost time,

she was given ad dit io nal time at the end of the test as compensation. Whether the equipment

malfunction affected her or not, Dr. Shamblin concluded that Dr. Burns-Toole's performance on the

"gold onlay casting section" of t he examination was inadequate. He conferred with two other

examiners who concurred with his assessment. The three examiners decided that she had failed the

test. 1

During the evening of the second day of the examination, Dr. Burns-Toole met with Dr. Zeb

Poindexter, a me mber of a statewide professional association of African-American dentists. The

T.S.B.D.E. had granted Dr. Poindexter permission to monitor the progress o f African-American

applicants and the conduct of T.S.B.D.E. members in the light of the high failure rates of AfricanAmerican examinees.

Dr. Burns-Toole alleges that Dr. Poindexter admonished her about seeking the variance out

of concern that it would call attenti on to her. Worse, Dr. Poindexter allegedly relayed to her that Dr.

Shamblin, one of the examiners who failed her, had stated: "Who did she think she is," with regard

to her request for a special accommodation. Dr. Burns-Toole also contends that Dr. Shamblin said

to her directly, "You're going to be here next year," an apparent reference to her impending failure

which would require her to re-take the test.

Dr. Burns-Toole applied to take the examination again on May 28-30, 1992. This time she

sought no variance or special ac co mmo dat io n. A panel of three examiners found her radiograph

deficient and, again, she failed. 2 Defendant Byrne, in his capacity as President of T.S.B.D.E., notified

Dr. Burns-Toole of her failure. Dr. Byrne had no other interaction with Burns-Toole regarding the

issues presented today. Moreover, he was, at all times, unaware of her religious beliefs.3 The district judge properly dismissed her First and Fourteenth Amendment claims as well,

citing the rule that the proper vehicle for these allegations is § 1983. Hearth, Inc. v. Texas

Department of Public Welfare, 617 F.2d 381, 382-83 (5th Cir.1980).

4 Estate of Carter through Taggert v. U.S., 921 F.2d 63, 65 (5th Cir.), cert. denied, --- U.S. ---

-, 112 S.Ct. 73, 116 L.Ed.2d 47 (1991).

5 Id. Had Dr. Burns-Toole taken the examination and failed a third time, she would have been

barred from ever taking the test again in Texas. Inst ead, she brought suit against Drs. By rne and

Shamblin, in their individual and official capacitie s, under 42 U.S.C. §§ 1983, 1985, and 1986 for

religious discrimination and for conspiracy to deprive her of her right to practice her religion freely.

She also brought claims under the First and Fourteenth Amendments. The defendants filed a Motion

to Dismiss or for Summary Judgment.

The district court granted the defendants' motion and entered a final judgment. With respect

to her § 1983 claim, the district court held that Dr. Burns-Toole had failed to present any factual

allegations sufficient to overcome the defendants' qualified immunity. 3 The district court dismissed

her § 1985 claim on the grounds that § 1985 applies only to allegations of racial animus. Because

a § 1985 claim is a prerequisite for a valid § 1986 claim, the judge dismissed the latter as well. Last,

he dismissed Dr. Burns-Toole's request to maintain supplemental jurisdiction over her pendent state

law claims even though the federal claims were dismissed. The district court then denied her motion

to reconsider the order granting summary judgment. This appeal followed.

After consideration of the plaintiff's arguments, we conclude that the district court properly

dismissed her claims and granted the defendants summary judgment. We need not reach a number

of the legal points to which she ascribes error because the facts upon which she bases her claims are

so wanting as to leave little doubt that the district court was correct.

II.

We review the district court's dismissal of the plaint iff's claims and grant of summ ary

judgment de novo. 4 As to summary judgment , the appellate court applies the same Fed.R.Civ.P.

56(c) test applied by the district court, without reference to the district court's ultimate conclusion. 56 Fed.R.Civ.P. 56(c).

7 Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265,

274 (1986).

8 Fee v. Herndon, 900 F.2d 804, 807 (5th Cir.), cert. denied, 498 U.S. 908, 111 S.Ct. 279, 112

L.Ed.2d 233 (1990).

9 See Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 n. 2 (5th Cir.1985) (a narrow ground

for decision renders "a number of latent and potentially thorny issues" unnecessary for disposition

of the case).

10 See Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738-39, 73 L.Ed.2d at 410-11. A grant of summary judgment is appropriate where there is "no genuine issue as to any material fact"

and "the moving party is entitled to judgment as a matter of law." 6 Summary judgment should be

granted where any essential element of the plaint iff's case is without factual support. 7 Similarly, with

respect to a motion to dismiss, appellate review is the same as that applied on the trial level. If the

plaint iff can prove no set of facts in support of her claims that would entitle her to relief, dismissal

is proper. 8

III.

The points of error t hat the plaintiff attributes to the district court are based primarily on

sophisticated legal issues. Although these questions have an undeniable academic appeal, we need

not address them here. Instead, the disposition of this case turns on the plaint iff's failure to present

any evidence that demonstrates that she has been the victim of religious discrimination. 9

The heart of Dr. Burns-Toole's case is 42 U.S.C. § 1983. An action brought under § 1983

against a state actor in his individual capacity, however, is subject to the defense of qu alified

immunit y. The district court dismissed the § 1983 claim because of the plaintiff's failure to plead facts

with adequate particularity suffic ient t o o vercome that immunity as concerns Drs. Byrne and

Shamblin.

The cloaking of state actors with a qualified immunit y is gro unded in t he belief that a

governme nt canno t o perate efficiently if its employees and agents are subjected to the costly and

time-consuming rigors of trial and d iscovery. 1 0 Instead, state actors should be able to act freely,

within the bounds prescribed by law, but without the fear of conse quences. The absence of this11 Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct.

803, 94 L.Ed. 1363 (1950).

12 Saldana v. Garza, 684 F.2d 1159, 1163 (5th Cir.1982), cert. denied, 460 U.S. 1012, 103

S.Ct. 1253, 75 L.Ed.2d 481 (1983).

13 Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 411

(1982).

14 See Jacquez v. Procunier, 801 F.2d 789, 791 (5th Cir.1986).

15 Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir.1985).

16 It is true that Dr. Burns-Toole also contends that Dr. Shamblin said to her directly, "You're

going to be here next year." This remark, however, does nothing to bolster her claim beyond the

"who does she think she is" statement. immunit y would, as Judge Learned Hand has said, "dampen the ardor of all but the most resolute, or

the most irresponsible, in the unflinching discharge of their duties." 11

The burden is on the plaint iff to overcome a defendant's defense of qualified immunit y. 12 To

do so, the plaint iff must show that the defendants' conduct was not objectively r easonable and,

further, that the defendants violated clearly established law. 13

Moreover, the plain t iff must plead specific facts with a level of particularity so that they

w o uld, if proved, warrant the relief she seeks. 1 4 We have previously explained the plaintiff's

obligation:

In cases against government officials involving the likely defense of immunit y we require of

t rial judges that they demand that the plaintiff's complaints state with factual detail and

particularity the bases for the claim which nece ssarily includes why the defendant-official

cannot successfully maintain the defense of immunity. 15

In other words, Dr. Burns-Toole cannot prevail with mere conclusory statements evidencing only a

personal belief that the defendants were motivated by an impermissible animus.

The district court concluded that the plaintiff failed to meet this burden. Dr. Burns-Toole

founds her allegations of religious discrimination on one statement, a statement which does nothing

to support her legal claims. The statement, relayed by Dr. Poindexter to her, allegedly was made by

Dr. Shamblin, one of the examiners who failed her. According to Dr. Poindexter, Dr. Shamblin had

stated, "Who did she think she is," with regard to her request for a special accommodation. 16

This remark might reflect a hostility towards those who request special accommodations. It17 Dr. Shamblin and Dr. Byrne filed affidavits with the district court in which they stated that

they had no knowledge of the plaintiff's religion at the time she tested or was graded.

18 751 F.2d 1472 (5th Cir.1985).

19 In that case, the Court held that the heightened pleading standard was inconsistent with the

notice pleading set up by the Federal Rules of Civil Procedure in a suit against a municipality. ---

U.S. ----, ---- - ----, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517, 523-24 (1993). The Court,

however, explicitly reserved the question of whether the heightened pleading standard could still even may reflect a hostility towards t he plaintiff as an individual. The statement is not, however,

probative of whether the plaintiff was the victim of discrimination on the basis of her religion. She

has presented nothing that could lead to this conclusion.

Moreover, Dr. Burns-Toole has failed to tie this statement to any adverse action taken by

S hamblin, Byrne, or the T.S.B.D.E., let alone any action that was motivated by a discr iminatory

animus. Implicit in her claim is that Dr. Shamblin failed her because of her request for a special

accommodation. Yet , she has not countered Dr. Shamblin's assertion that he was unaware of her

religious beliefs at the time he graded her exam. 17 In addition, she has not addressed the damaging

evidence that two other impartial examiners voted to fail "Applicant # 7." She has, to date, brought

no claims against them.

T he paucity of her evidence notwithstanding, Dr. Burns-Toole cannot overcome a

fundamental causation problem: She failed the test the next time she took it, and this time she failed

a different porti on of the test. In this second instance, three examiners against whom the plaintiff has

made no allegations voted to fail her. She had not sought a religious accommo dat io n for this

examination and she has not alleged that the examiners failed her because of her request two years

earlier. The failure on the second test cuts against her argument that, but for the discriminatory

animus directed at her, she would have passed the first test.

The plaint iff seeks to side-step her lack of evidence by attacking the standard that the district

court applied to her claim. Specifically, she asks us to revisit the case of E lliott v. Perez 18

, in which

the Fifth Circuit adopted the "heightene d pleading standard" in causes of action brought under §

1983, and reevaluate it in the light of the Supreme Court's recent decision in Leatherman v. Tarrant

County Narcotics Intelligence and Coordination Unit. 19apply to suits against individual state officials asserting qualified immunity. Id. at ----, 113 S.Ct.

at 1162, 122 L.Ed.2d at 523.

20 In the light of Burns-Toole's failure to meet even the general summary judgment standard,

the district court was justified in dismissing the suit against the defendants in their individual and

official capacities.

21 Tex.Rev.Civ.Stat.Ann. Article 4551j (West 1993).

22 Id.

23 The unambiguous provision stating the law's purpose reads: "This immunity is enacted to

relieve and protect the persons named from being harassed and threatened with legal action while

attempting to perform official duties." Id.

24 Atascadero State Hospital v. Scanlon, 473 U.S. 234, 239-40, 105 S.Ct. 3142, 3145-46, 87

L.Ed.2d 171, 178 (1985). We decline this invi

t at io n. Under the most generous standard applicable to a motion for

summary judgment, Dr. Burns-Toole could not prevail. She has, in no way, created an issue o f

material fact on whether the defendants' conduct was sufficient to sustain a § 1983 claim. 20

The plaint iff nonetheless argues that the district court should have recognized the abrogation

of the defendants' qualified immunit y by Texas statute 21

. That statute provides immunity for any

member of the T.S.B.D.E., its employees, or witnesses called to testify on its behalf in the absence

of fraud, conspiracy, or malice. 22 Dr. Burns-Toole argues that because she pleaded conspiracy, the

statute waives the immunity asserted by the defendants.

The statute is not a waiver of immunit y at all but, rather, a statement explicit ly granting

immunit y. In those circumstances where fraud, conspiracy, or malice are pleaded, the statute would

not apply at all. The purpose of the statute, as stated plainly on its face, is to grant immunity to board

members so that they will not be subjected constantly to lawsuits. 23 If we were to read Article 4551j

as a waiver of the state's immunit y, it would be a striking departure from the principle that when a

state seeks to waive its immunit y, it must do so by "the most expre ss language or by such

overwhelming implication from the text...." 24 The statute at issue here does not cross that stri ct

threshold.

IV.

That leaves only the plaint iff's claim under § 1985(3) that the defendants conspired to deprive25 There is little doubt that the reach of § 1985 poses an interesting question. Since the

Supreme Court stated in Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29

L.Ed.2d 338, 348 (1971), that a cause of action brought under § 1985(3) requires an allegation of

conspiracy motivated by "some racial or perhaps otherwise class-based, invidiously discriminatory

animus," scholars and judges have attempted to define the parameters of "otherwise class-based".

Subsequent decisions have addressed this phrase in particular contexts, but refused to indicate its

outside boundaries. See, e.g., United Brotherhood of Carpenters and Joiners of America v.

Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) (Court refused to extend § 1985(3)

to conspiracies motivated by commercial or economic views, status, or activities); Bray v.

Alexandria Women's Health Clinic, --- U.S. ----, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) (Court

refused to extend § 1985(3) to conspiracies against women seeking abortions).

26 Although the district court granted the defendants' motion to dismiss with respect to the §

1985 claim, it should be clear from our discussion that the evidence presented could not get

Burns-Toole past summary judgment on this point either. her of her freedom to practice religion. Dr. Burns-Toole asks us to join the legal debate concerning

the reach of § 1985 and address spec ifically whether it applies to religious discrimination. 2 5 That

debate, however interesting, is unnecessary to the resolution of the present case.

In order to assert a claim under § 1985(3), a plaint iff must allege some class-based animus.

At that point, the court can decide whether the class against which the defendants allegedly

discriminated is within the parameters of § 1985(3). In the case at hand, Dr. Burns-Toole has wholly

failed to identify evidence which shows such class-based discrimination. She contends that she was

discriminated against because she is a Seventh Day Adventist. She has failed, however, to present

any evidenc e in support of the proposition that the defendants discriminate against Seventh Day

Adventists as a class.

The evidence she has offered hurts rather than helps her case. The board granted her request

for a special day on which she could take the examination and her request for more time. A typical

case within this context would have alleged discrimination if the plaint iff and similarly situated class

members were forced to a choice between their religion a nd t he scheduled testing dates. Here,

however, the defendants saved Burns-Toole from that dilemma by granting her a special

accommodation. In sum, her evidence—so wanting as support for her § 1983 action—is even weaker

with regard to a showing of class-based discrimination under § 1985(3). 26

V.

Finally, the plaint iff charges that the district court committed error when it dismissed her state27 28 U.S.C. § 1367(a).

28 See Noble v. White, 996 F.2d 797, 799 (5th Cir.1993) (per curiam).

29 Id. law claims, rather than exercise its supplemental jurisdiction, in spite of the fact that the statute of

limitations had run. A district court may ent ert ain state law claims pursuant to its "supplemental

jurisdiction," provided that the claims arise from the case or controversy over which the district court

had original jurisdiction. 27 When all federal claims are dismissed—i.e., those over which the district

court had original jurisdiction—the district court enjoys wide discretion in determining whether to

retain jurisdiction over the remaining state law claims. 28

The wide discretion afforded the trial judge translates into deference by a reviewing court:

"We do not light ly disturb a district court's § 1367 determination to remand state law claims." 29 We

will not do so here. Based upon our review and analysis of the evidence, that the statute of

limitations has run on Burns-Toole's state law claims hardly dictates a result which we, in the interest

of justice, cannot countenance.

For the foregoing reasons, the district court judgment is

AFFIRMED.