### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30225

Dr. MADHWA RAJ, Plaintiff - Appellant
v. LOUISIANA STATE UNIVERSITY; BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE; LOUISIANA STATE UNIVERSITY HEALTH AND SCIENCES CENTER IN NEW ORLEANS, Defendants - Appellees

Appeals from the United States District Court for the Eastern District of Louisiana

Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges. HIGGINSON, Circuit Judge: Dr. Madhwa R a

j , a p ro f e s s o r o f b i o ch e m i s t ry and obstetrics a nd gynecology at Louisiana State University (“LSU”), appeals the district court’s dismissal of his c omplaint for lack of subject matter jurisdiction and for failure to state a

c l a i m on which r elief can b e granted. We find that sovereign i mmunity bars Raj’s claims under state law; the Age Discri m i n ation i n Employment Act; and 42 U.S.C. § 1983 and § 1985. With r egard to Raj’s remaining claims, we recognize that a plaintiff is not required t o e s t ab l ish a prima f acie case of discrimination at the pleading stage, but we n o netheless conclude that Raj has U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 19, 2013 Ly l e W . Cay ce Clerk Case: 12-30225 Document: 00512214042 Page: 1 Date Filed: 04/19/2013No. 12-30225

failed to state a claim for which relief can be granted. W e therefore AFFIRM the district court’s judgment of dismissal. I. Facts and Proceedings Raj filed a complaint against LSU, the LSU Health and Sciences Center of New Orleans (“LSU Health”), and the LSU Board of Supe rvisors (the “LSU Board”), alleging discrimination based on his race, r eligion, national origin, age, and g ender. For the p urpose of reviewing the district court’s dismissal of Raj’s claims u nder F ederal Rule of Civil Procedure 12(b)(6), w e will “accept[] ‘all wellpleaded facts as true.’” In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir. 2007) ( quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit , 369 F.3d 464, 467 (5th Cir. 2004)). Raj is a m ale of East Indi a n o r i gi n ; h e i s over the age of forty. In his complaint, Raj states that he became a f ull profess o r a t L S U in 1984 and received tenure in 1 987. Raj’s grant funding from the National Institu t es of Health ended in June 2009. H e began writing p roposals for new gr ants for his research on herbal t r e a t m ents for ovarian and breast cancer. I n a ddition, Raj published papers, gave a lecture on stem cell research, a nd supervised medical residents and a graduate student. Raj alleges that, despite LSU rules a nd procedures, his performance was measured not by his accomplishments but b y the amount of grant m oney that he obtained o r failed t o obtain. In December 2009, the chair o f the department of obstetr i cs and gynecology, Dr. Thomas Nolan, b egan “harassing” Raj regarding this i ssue. Nolan told Raj that due t o Raj’s failure to a c q u i r e grant funding, LSU would be withdrawing the $15,000 in supplemental funds given to Raj the previous year. The complaint doe s n o t s p e c i fy the funds’ original
purpose. In March 2 010, Nolan asked Raj to write a letter of retirement effective June 30, 2010, although R aj had not expressed a wish to retire. After Raj’s

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attorney contacted LSU personnel, R aj alleges that the harassment “ceased for a while, then began again.” The dean of LSU medical school o rdered that Raj’s laborat o r y would be closed effective June 2010. The dean, along with Nolan, a ssigned Raj to work for

an a ssistant professor in the core sciences l aboratory, a c hange that “disgrace[d] and embarrass[ed]” Raj. Raj al l e g e s that in closing his laboratory, LSU “gave
away m ore than $300,000 of equipment and chemicals that [Raj] brought with him,” and inconvenienced his research and that of his graduate student. LSU then informed Raj that his salary would be negotiated o n his ability to ob tain grant f

unding, notwiths t a n d ing Raj’s understanding that his base salary was guaranteed by state funds; Raj w as given five days to agree to these terms. Raj alleges that in J anuary 2011, he discovered that his salary was the lowest of all similarly-qua l ified professors throughout his e mployment. Although Raj is a full professor, he alleges that his salary i s b elo w t h a t of all associate p rofessors i n the basic science departments and i s in the r ange of assistant professors. He states that, in contrast to his colleagues’ salaries, his salary has not been increased for six year s . Raj claims that L SU falsely represented that his salary was comparable to that of his colleagues. Raj alleges that LSU’s actions exacerbated his diabetes a n d c a used neuropathy and chest pain, requiring him to t ake sic k leave. While on sick leave, Raj tore his shoulder rotator cuff, causi n g h i s p h ysician to extend his leave; he states that LSU’s medical record requests forced h i m to undergo superfluous doctors’ visits every ten days. Raj claims that LSU also refuses to allow him to take his earned annual leave of over eight months. Raj filed a charge o f d iscrimination with the Equal Employment Opportunity Commission (EEOC) in April 2011. The record does not contain the EEOC’s response to the charge, but Raj alle g e s that “[o]n April 20, 2011, the EEOC issued a notice of right to sue.”

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Raj f iled a complaint in feder a l district court against LSU, L SU Health, and the LSU Board on May 1 2, 2011. Raj’s complaint asserts c laims under Title VII of the Civil Rights Act based on retaliation and discrimination due to h is

race and national origin, see 42 U.S.C. § 2000e et seq. ; the Age Discrimination in Employment Act (ADEA), see 29 U.S.C. § 621 et s e q. ; and the Equal Pay Act, see 29 U .S.C. § 206(d)(1); as well as claims under Louisiana state law for breach of contract; intentional i nfliction of emotional distress and c onspiracy to commit the same; and intentional fraud, intentional misrepresentation, and fraudulent inducement. Raj subsequently twice amended his complaint, adding claims

u n d e r 42 U.S.C. § 1 983 and § 1985 for discrimination and violation of e q u a l protecti o n b a s e d on gender and race and for conspiracy to commit the same; religious discrimination under T itle VII; violations of equal p r otection and due
process under the Fifth and Fo u r teenth Amendments; and Louisiana common law claims for intentional infliction of emotional distress a nd denial of due
process. Raj’s second amended complaint also stated claims for injunctive and declaratory relief against d efendants “in their individual and official capacities,” but did not name individual officials as defendants. Defendants moved to dismiss R aj’s claims based on l ack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state

a claim under Rule 12(b)(6). 1 The district court granted defendants’ motion to dismiss on February 24, 2012. The di strict court dismissed all claims against LSU and LSU Health, finding they lacked capacity to be sued; dismissed Raj’s ADEA and § 1 983 and § 1 985 claims as barred b y t h e LSU Board’s Eleventh Amendment immunit y ; and dismissed Raj’s remaining claims under Rule 12(b)(6) for failure to allege facts on which relief could be granted.

1 D ef end ants als o argued f or d i s m i s s al und er Rule 12(b) (5) f or ins uf f icient s ervice of p roces s. The d is trict court d is m is sed that claim as m oot, and the p arties d o not challenge that ruling on ap p eal. 4 Case: 12-30225 Document: 00512214042 Page: 4 Date Filed: 04/19/2013No. 12-30225

Raj appeals, arguing that the district court erred in dismissing h is claims under Rules 12(b)(1) and 12(b)(6), and contending that the district court should have a llowed him the opportunity to amend his complaint in areas of fact and law that the district court deemed insufficient. II. Analysis A. Dismissal For Lack of Subject Matter Jurisdiction We review a district court’s ruling on a Rule 12(b)(1) motion to dismiss for lack of subject matter j urisdiction d e n o v o. Zephyr Aviation, L.L.C. v. Dailey , 247 F .3d 5 65, 570 (5th Cir. 2001). “The burden o f proof for a R u l e 1 2 (b ) ( 1 )

m o t i on to dismiss is on the party asserting jurisdiction. Accordingl y , t h e plaintiff constantly b ears the burden o f proof that jurisdiction does i n fact exist.” Ramming v. United States , 2 81 F.3d 158, 161 (5th Cir. 2 001) (citations omitted). The district court dismissed LSU and LSU H ealth f rom the case, ruling that they lack the capacity to be sued under Louisiana state law. See La. Rev. Stat. Ann. § 17:3351(A)(1) (2011). Raj h as w aived appellate review of this ruling by failing to address it in his brief. See Fed. R. App. P. 28(a)(9)(A) (appellant’s brief must contain “contentions and the reasons for them, with citations to the authorities a nd parts of the record on which the appellant r elies”); U nited States

v . T hibodeaux , 211 F.3d 910, 912 (5th Cir. 2000) (“It has long b een the rule i n this circuit that any issues not briefed on appeal are waived.”). The Eleventh Amendment bars citizens o f a s tate from suing their own state or another state in federal court, U .S. Const. amend. XI; Hans v. Louisiana , 134 U.S. 1, 11 ( 1890), unless the state has w a i v ed its sovereign i m munity or Congress has e xpressly abrogated it. Ysleta del Sur Pueblo v. Texas , 36 F.3d 1325, 1335 (5th Cir. 1994). Louisiana has expressly d e clined to waive its immunity under the Eleventh Amendment, see L a. Rev. Stat. Ann. § 13:5106(A) (2010) (providing that “[n]o suit against the state or a state agency or political subdivision shall be instituted in any court other than a Louisiana s tate court”);

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Richardson v. S. U

niv. , 118 F.3d 450, 4 53 ( 5th Cir. 1997) (“Louisiana has not waived its sovereign immunity for suits brought in federal court”), and C ongress has not abrogated state sovereign immunity under the ADEA, see Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 91 (2000) , n o r u n d er § 1983, see Quern v. Jordan , 440 U.S. 332, 339-340; Richardson , 118 F.3d at 453. 2 Raj’s o nly contention on appeal regarding subject matter j urisdiction is to note, correctly, that the Eleventh Amendment does not bar suits for injunctive

o r declaratory relief against individual state officials acting in violation of federal law. See Ex p arte Y oung , 209 U.S. 123, 155-56 (1908). To fall within the Ex parte Young exception t o sovere i gn i m m u nity , h owever, a p l aintiff must name individual state officials as defendants in their official c apacities. See Kentucky

v. Graham , 473 U.S. 159, 169 n.18 (1985) (“In an injunctive or declaratory action grounded on federal law, the S tate’s immunity can be overcome by naming state officials as defendants.”). Although Raj has asserted claims for injunctive and d e cl ar at o ry r e li e f

, h e c a n n o t overcome sovereign immunity under Ex part e Y o u n g because he has n amed o n l y L SU, L SU Health, and the LSU Board as defendants. Thus, R aj ’ s AD E A a nd § 1983 and § 1985 claims are barred if the LSU Board is “an arm of [the ] S t a t e ” and, therefore, an entity entitled to sovereign immunity. Richardson , 1 18 F.3d at 450 (holding that e ven when a p laintiff does not “name the State of Louisiana as a defendant

. . . [his] suit may nonetheless

succum b t o E l e v enth Amendment immunity if the S tate is the real p arty in interest.”).

2 Raj als o m ak es claim s alleging d ue p roces s and equal protection violations und er the Fif th and Fourteenth Am end m ents

. Becaus e § 1983 is the vehicle und er w hich thes e claim s are p rop erly brought, see Conn v. G a bbert , 526 U

. S. 286, 290 ( 1999) , they are s ubject to the
s am e sovereign im m unity analys is as R aj’s dis crim ination and equal p rotection claim s exp res s ly brought und er § 1983. 6 Case: 12-30225 Document: 00512214042 Page: 6 Date Filed: 04/19/2013No. 12-30225

For the same r easons we articulated w ith regard to Southern University and its Board in Richardson , 118 F.3d at 454-56, and the University of Southern Louisiana in Delahoussaye v . City of N e w Iberia , 937 F.2d 144, 147-48 ( 5th Cir. 1991), 3 w e agree with the district court’s finding – which Raj fails to challenge

on a ppeal – that the LSU Board is an arm of the state and is immune from suit under the Eleventh Amendment. See Pastorek v. Trail , 248 F .3d 1140 ( 5th Cir. 2001) (unpublished) (concluding that “the LSU Board is an ‘ arm of the state’ that

e n j oys Eleventh Amendment immunity”). LSU s tands on substanti ally th e s a m e state law footing as the Uni v e rsity of Southern L ouisiana, which this court determined was an arm of the state u s i n g a s i x -factor test set out in Delahoussaye , 937 F.2d at 147-48. First, state l aw characterizes the agency as

an arm of the state, see id. at 147: LSU was created by state la w, see La. Rev. Stat. Ann. § 36:642(B ) ( 2 0 1 2 ) , and its Board is part of the Louisiana executive branch of government, see La. Rev. Stat. Ann. § 17 : 3 215 (2011). Second, LSU receives state funding as an executive branch agency, must dispense donations in a c cordance with state law, and pays judgments against it from state funds. La. Const. art. 12, § 1 0 ( C); La. Rev. Stat. Ann. § 1 7:3351 (2011); see Delahoussaye , 937 F.2d at 148. Third, state executive branch offic i a l s have direct control over appointment of LSU Board members. La. Rev. S tat. Ann. § 17:1453 (2012); see Delahoussaye , 937 F.2d at 148. Fourth, LSU’s p urpose under state law is statewide, n o t l o c al. La. Rev. Stat. Ann. § 17:3220 (LSU is “established and maintained to serve the educational needs o f the people of the state”); see Delahoussaye , 9 37 F.2d at 1 48. Fifth and sixth, the L SU Board has the right to sue and be sued in its o wn name and hold property, while LSU itself does not, see La. Rev. Stat. Ann. § 17:3351(A); however,

3 Where, as here, Louis iana law view s a univers ity and its board of s up ervis ors as “one and the s am e, ” the univers ity and the board “s tand on the s am e s overeign im m unity f ooting. ” Ri cha rdson , 118 F. 3d at 454- 55. 7 Case: 12-30225 Document: 00512214042 Page: 7 Date Filed: 04/19/2013No. 12-30225

just because [the L SU Board] can be sued and c a n h old and use p r o perty does n ot mean that these final two factors weigh against a finding of sovereign i mmunity. In fact, preci s e l y t he opposite is true. First

. . . L ouisiana h as not waived its immunity from suit in federal court. Second, and p erhaps m ost importantly, money judgments against the Board are paid by the State of Louisiana.
Richardson , 118 F.3d a t 45 6; see La. Rev. S tat. Ann. § 17:3351. We therefore affirm the district c our t ’s dismissal of Raj’s claims under the ADEA and 42 U.S.C. § 1983 and § 1985. We also conclude that R aj ’ s state law claims are b arred by sovereign immunity. Although defendants “did not argue that sovereign immunity bars” Raj’s s t ate law claims, “we may consider this issue s ua sponte because it bears

on this court’s subject-matter jurisdiction.” Perez v. Region 20 Educ. Serv. Ctr. , 307 F.3d 318, 333 n.8 (5th C ir. 2 002); see also Steel Co. v. Ci t ize n s for a Better Env’t , 523 U.S. 83, 95 (1998) (“Every federal appellate court has a special obligation to s atisfy itself not only of its own jurisdiction, but also that o f the lower courts in a case under review, even [if] the p a rties are prepared to concede it.”). The Supreme Court in Pennhurst State School and Hospital v. Halderman held that sovereign immunity barre d federal courts from hearing state law claims brought in federal court against state entities. 465 U.S. 89, 117 (1984). Because Raj “has no t sued any [university] official,” but instead brought his claims “against the University qua University,” and because “Louisiana has not waived its sovereign i mmunity for suits b r o u gh t in federal court,” Raj’s “state law claims are also subject to the Eleventh Amendment bar.” Richardson , 118 F.3d at 453 (citing La. Rev. Stat. Ann. § 13:5106(A) (2010)).

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B. Dismissal for Failure to State a Claim The only claims remaining, therefore, a re Raj’s claims under the Equal Pay Act and Title VII of the Civil Rights Act. 4 We review a district court’s grant of a m otion to dismiss based on failure to state a claim d e novo, a ccepting all well-pleaded facts in the complaint as true and viewed in the l ight most fav o r ab le to the plaintiff. Bass v. Stryker Corp. , 669 F.3d 501, 506 ( 5th Cir. 2012). We affirm the di s t r i c t c o urt’s grant of a motion to dismiss “when the plaintiff has not alleged enough facts to state a claim to relief that is plausible

on i ts face or has failed to raise its right to relief above the speculative l evel, on the assumption that all the allegat i o n s i n the complaint are true (even if doubtful in fact).” I

d

. To state a claim that is facially plausible, a plaintiff must plead factual content that “allows the c ourt to draw the reasonable i n f erence that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 686 (2009). “We may affirm a district court’s Rule 12(b)(6) dismissal

on a ny grounds raised b elow and supported by the record.” Cuvillier v. Taylor , 503 F.3d 397, 401 (5th Cir. 2007). On appeal, Raj, who is represented by counsel, fails t o address the district court’s dismissal o f his Title VII retaliation claim. Although Raj does assert that the district court erred i n dismissing hi s c laims under the Equal Pay Act, he “does not address the merits” of the district court’s decision or suggest grounds for reversal. 5 Brinkmann v. Dallas Cnty. Deputy Sheriff Abner , 813 F.2d 744,

4 The Eleventh Am end m ent d oes not bar thes e claim s becaus e Congres s has exp res s ly abrogated s overeign im m unity und er both s tatutes

. See U ssery v . S t a t e of Loui si ana on beha l f of La

. D ep ’t. of H

ea lth a nd H

osp s. , 150 F. 3d 431, 434 ( 5th C ir. 1998) (Title VII) ; Si ler- Khodr v . U ni v . of Tex. H

ea l th Sci s. Ctr. Sa n A ntoni o , 261 F. 3d 542, 550 ( 2001) ( Equal Pay Act)

.
5 Raj cites one cas e involving the E q u a l Pay Act, Lega ni a v . E. Jef f erson G en. H

osp . D ist. No. 2, but f

ails to exp lain its relevance. N o . C i v . A. 02- 1085, 2003 WL 21277127, at *7 ( E. D

. La. M ay 29, 2003)

. L ega n i a is inap p os ite, as it d ealt w ith a m otion f or s um m ary jud gm ent rather than a m o t i on to d is m is s on the p lead ings ; m oreover, the dis trict court in Lega ni a f

ound that the p laintif f had not es tablis heda p rim a facie cas e und er the Equal Pay

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748 (5th Cir. 1987). W e therefore do not reconsider the district court’s dismissal for failure to state a claim under the Equal Pay Act or for retaliation under Title VII. See Fed. R

. App. P. 28(a)(9)(A) (appellant’s brief must contain “contentions and the r e a sons for them, with citations to the authorities and parts of the record on which the appellant relies”); Brinkmann , 813 F.2d at 748. Defendants, in their motion to dismiss, c onstrued Raj ’ s c o mplaint as alleging a disp a r a te treatment c laim under Title VII. In responding to the motion, Raj did not challenge this interpretation and a rgued only that he adequately alleged an adverse emp l o y m e nt ac ti o n , as required by the prima facie test for disparate t reatment. For the first time o n appeal, Raj argues that his complaint makes out c l a i m s of c o nstructive discharge and hostile work environment. Having failed to raise these arguments in the district court, Raj
may not do so on appeal. FDIC v. Mijalis , 15 F.3d 1314, 1326-27 (5th C ir. 1994). But even if he were p ermitted to do so, Raj’s complaint does not state a claim to relief under either theory that is “plausible o n its f ac e . ” See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 ( 2007). A constructive discharge claim is based on

a plaintiff’s actual resignation, without which n o discharge – constructive or otherwise – has occurred. See Brown v. Kinney Shoe Corp. , 237 F

. 3d 556, 566 (5th Cir. 2001) ; Barrow v. New Orleans S

. S. Ass’n , 10 F.3d 2 9 2 , 2 9 7 ( 5 th Cir. 1994); Jurgens v. EEOC, 903 F.2d 386, 390 ( 5th Cir. 1990). Because at the time of his complaint Raj remained a tenured professor at LSU, he has not stated a plausible claim f

or relief f

or constructive discharge. A hostile work environment claim, in turn, necessarily r ests on an allegation that an employer has created “a working e nv i r o n m e n t h eavily charged with

. . . discrimination.” Rogers v. EEOC, 4 54 F.2d 234, 2 38 (5th Cir. 1971). Raj’s complaint repeatedly avers that LSU’s actions were “pretextually” premised o n h is failure to obtain grant

Act becaus e he had p rovid ed “[ n] o d ocum entary p roof of unequal p ay. ” Id. 10 Case: 12-30225 Document: 00512214042 Page: 10 Date Filed: 04/19/2013No. 12-30225

funding, but h e does n ot allege any facts that l i nk the alleged harassment with his race or national o rigin. 6 As Raj has not alleged any connection between his

race a nd national origin a nd the harassment alleged in the complaint, h e has not pled a claim of hostile work e nvironment that raises his right to relief “above the speculative level.” See Bass , 669 F.3d at 506. This l eaves Raj’s a ssertion that his complaint made out a claim for disparate treatment under Title VII. Raj argues that the district court erred in concluding that LSU’s actions did n ot constitute a change in “terms, conditions

or privileges of employment” necessary to show an adverse employment action. Alth o u gh R a

j do e s n ot challenge the district court’s interpretation of his pleadi n g burden, we nonetheless note that a p laintiff n eed n ot make out a p rima facie

case of discrimi n a t i on i n o rder to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim. Swierkiewicz v . Sorema N.A. , 5 34 U.S. 510-12 (2002). Inasmuch as the district court required Raj to make a showing of each prong of the prima facie t est for disparate tre a t m e n t a t th e pleading stage, the district court erred by improperly substituting an “evidentiary s tandard” for a “pleading requirement.” Id. at 512. W e n o n e t h eless conclude that Raj failed to state a claim for disparate treatment unde r Title VII. See Cuvillier , 503 F .3d a t 401. Even assuming, arguendo , that the laboratory closure, reassignment, and salary renegotiations constituted adverse employment actions, th e “ultimate question” in a Title VII d i s p a rate treatment claim remains “whether a defendant took the adverse employment action against a plaintiff because of her protected status.” Kanida

v. Gulf Coa s t Med. Personnel LP, 363 F .3d 568, 576 (5th Cir. 2004)(emphasis added). Raj’s complaint and speculation did not all e g e a n y facts, direct or circumstantial, th a t w o u ld suggest LSU’s a ctions were based o n Raj’s race or

6 Although R aj am end ed his com p laint to ad d religion as a bas is f or his Title VII claim , his com p laint failed to sp ecif y his m em bers hip in any religion.

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national origin or that LSU treated similarly s ituated employees of other races

or national origin more favorably. Because Raj “has failed to raise [his] right to relief above the speculative l evel,” we affirm the district court’s dismissal of Raj’s complaint under Rule 12(b)(6) for failure to state a claim. See Bass , 669 F.3d at 506. C. Opportunity for Leave to Amend Raj also a rgues that the district court should have allowed him the opportunity to a mend his complaint in “areas of fact and l a w” that the district court “deemed insufficient.” “We review the district court’s d e nial of a leave to amend for abuse o f discretion.” Schiller v . Physicians Resource Grp

. I n c . , 3 42 F.3d 563, 5 66 (5th Cir. 2 003). The district court twice allowed Raj to amend his complaint, and Raj does n ot point to any i nstance i n the record, nor could we find
any such instance, where the district court denied him leave to further amend. Thus, we find no abuse of discretion. III. Conclusion For th e above reasons, we A FFIRM the district court’s j udgment of dismissal.

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