1The unsafe-work-environment complaint was based on an incident that

occurred in July 2003 when Paskauskiene pricked her finger with a needle during

an experiment. Paskauskiene alleges that the incident was not properly reported

and she was not tested for any blood-borne infections.

2Paskauskiene sued Basu in her official and individual capacities.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

DR. VIOLETA PASKAUSKIENE § 

§ 

V. § CIVIL ACTION NO. 4:05-CV-501-Y

§ 

UNIVERSITY OF NORTH TEXAS § 

HEALTH SCIENCE CENTER and § 

DR. ALAKANANDA BASU § 

ORDER GRANTING MOTION TO DISMISS AND 

GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT

Pending before the Court is Defendants’ Motion to Dismiss [doc. # 111], filed December 15,

2006, and Defendants’ Motion for Partial Summary Judgment [doc. # 128], filed January 9, 2007.

After consideration, the Court GRANTS the motions.

I. BACKGROUND

Plaintiff Dr. Violeta Paskauskiene was employed as a research associate at defendant

University of North Texas Health Science Center (“UNTHSC”). Her supervisor was defendant Dr.

Alakananda Basu. In late 2003, Paskauskiene, a Lithuanian, began to believe that she was being

treated differently and less favorably than research associates from Asia. On October 9, 2003,

Paskauskiene complained to the human-resources department about the disparate treatment and

unsafe working conditions.1

 The next day, Basu fired Paskauskiene based on “poor performance.”

(2nd Am. Comp. at 3.) Paskauskiene filed suit in this Court against UNTHSC and Basu2

 raising

 

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342 U.S.C.A. §§ 2000e-2000h-6 (West 2003).

442 U.S.C.A. § 1981 (West 2003).

542 U.S.C.A. § 1983 (West 2003).

6UNTHSC and Basu’s argument that Paskauskiene’s complaint did not include

the common-law claims is patently incorrect. This Court granted Paskauskiene

leave to amend her complaint on September 11, 2006. This amended complaint,

which was also filed on September 11, clearly contains Paskauskiene’s common-law

claims. (Am. Comp. at 4, 5.)

7The Court notes that this case could have been decided more expeditiously

had counsel for UNTHSC and Basu been more diligent about this case when summary

judgment and dismissal were first sought. By waiting until the Court disposed

of the first round of dispositive motions and then again seeking leave for

summary disposition of Paskauskiene’s claims, counsel has imposed additional and

needless work on this Court and on Paskauskiene.

2

claims for racial and national-origin discrimination and for retaliatory discharge under Title VII,3

§ 1981,4 and § 1983.5 She further raised common-law claims for tortious interference with

prospective business relationships and for defamation.

On November 20, 2006, this Court dismissed Paskauskiene’s § 1981 and § 1983 claims

against UNTHSC and Basu in her official capacity based on Eleventh-Amendment immunity. This

Court also dismissed Paskauskiene’s Title VII claim against Basu in her individual capacity.

Further, this Court concluded that UNTHSC and Basu in her official capacity were entitled to

judgment as a matter of law on Paskauskiene’s Title VII claims. Thus, Paskauskiene’s common-law

claims against UNTHSC and Basu6 and her § 1983 and § 1981 claims against Basu in her individual

capacity were allowed to proceed. UNTHSC and Basu again seek dismissal or summary judgment

against Paskauskiene’s remaining claims.7

 

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3

II. MOTION TO DISMISS

UNTHSC and Basu argue that Paskauskiene’s common-law claims against UNTHSC and

Basu in her official capacity should be dismissed based on Eleventh-Amendment immunity. See

FED. R. CIV. P. 12(b)(1). Indeed, the Eleventh Amendment generally divests federal courts of

jurisdiction to entertain citizen suits directed against states. See Stem v. Ahearn, 908 F.2d 1, 2 (5th

Cir. 1990). This bar applies regardless of the nature of the relief sought. See Pennhurst State Sch.

& Hosp. v. Halderman, 465 U.S. 89, 100 (1984). The immunity from suit is not avoided by suing

state employees in their official capacity because the claim remains one against the state treasury.

See Stem, 908 F.2d at 3. Thus, it makes no difference if the action is brought against the state

directly, or indirectly against subordinate agencies or officeholders operating in their official

capacities: immunity applies unless waived by the state or Congress. See State of Tex. by and

through Bd. of Regents of Univ. of Tex. Sys. v. Walker, 142 F.3d 813, 820 (5th Cir. 1998).

Regarding Paskauskiene’s common-law claims against UNTHSC and Basu in her official

capacity, it is clear that neither Texas nor Congress waived the state’s Eleventh-Amendment

immunity for these intentional torts. See McCall v. Dallas Indep. Sch. Dist., 169 F. Supp. 2d 627,

638-39 (N.D. Tex. 2001); Jackson v. Tex. A&M Univ. Sys., 975 F. Supp. 943, 946 (S.D. Tex. 1996);

see also TEX.CIV. PRAC. & REM.CODE ANN. § 101.057 (Vernon 2005). It is undisputed that Basu,

sued in her official capacity, was an employee of UNTHSC at all relevant times and that UNTHSC

is a state agency. Thus, these claims are barred by the Eleventh Amendment.

 

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8In this section of the order, “Basu” refers to her solely in her

individual capacity.

4

III.. PARTIAL SUMMARY JUDGMENT

Basu, as sued in her individual capacity,8

 argues that she is entitled to judgment as a matter

of law on Paskauskiene’s claims under § 1981 and § 1983 based on qualified immunity. She also

asserts that summary judgment is proper regarding Paskauskiene’s common-law claims because she

is entitled to official immunity.

A. SUMMARY-JUDGMENT STANDARD OF REVIEW

Summary judgment is appropriate when the record establishes “that there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(c). The party moving for summary judgment has the initial burden of demonstrating

that it is entitled to a summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The moving party need not produce evidence showing the absence of an issue of fact with respect

to an issue on which the nonmovant bears the burden of proof, however. Rather, the moving party

need only point out that the evidentiary documents in the record contain insufficient proof

concerning an essential element of the nonmovant’s claim. See id. at 323-25.

When the moving party has carried its summary-judgment burden, the nonmovant must go

beyond the pleadings and by its own affidavits or by the depositions, answers to interrogatories, or

admissions on file set forth specific facts showing that there is a genuine issue for trial. FED.R.CIV.

P. 56(e). This burden is not satisfied with 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). If the evidence is merely colorable or is not

 

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9This second part of the test is often referred to as “objective

reasonableness.” Thus, “whether an official protected by qualified immunity may

be held personally liable turns on the ‘objective legal reasonableness’ of the

action . . . assessed in light of the legal rules that were ‘clearly established’

5

significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249-50 (1986).

B. QUALIFIED IMMUNITY

To the extent Paskauskiene seeks money damages directly from Basu for her actions taken

under color of state law, Basu may invoke her right to qualified immunity. See Hafer v. Melo, 502

U.S. 21, 26 (1991). Public officials performing discretionary functions enjoy immunity from suits

for damages, provided their “conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). Because an official is entitled to immunity from suit, not merely from liability, immunity

questions should be resolved at the earliest possible stage in the litigation. See Hunter v. Bryant,

502 U.S. 224, 227 (1991).

When this Court is called upon to confer qualified immunity upon a government official

accused of violating a federal constitutional or statutory right, the Fifth Circuit requires the Court

first to employ a three-part inquiry. See Conroe Creosoting Co. v. Montgomery Cty., Tex., 249 F.3d

337, 340 (5th Cir. 2001). First, the Court must determine whether the plaintiff has actually alleged

the violation of a federal constitutional or statutory right. See id. If the Court determines that she

has, the Court must then decide whether, at the time of the alleged violation, that right was so clearly

established that a reasonable government official in Basu’s situation would have understood that her

conduct violated that right. See Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993).9 Finally, the

 

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at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987). 

6

Court must “determine whether the record indicates that the violation occurred, or gives rise to a

genuine issue of material fact as to whether the defendant actually engaged in the conduct that

violated the clearly established right.” Conroe Creosoting, 249 F.3d at 340. Qualified immunity

“provides ample protection to all but the plainly incompetent or those who knowingly violate the

law.” Malley v . Briggs, 475 U.S. 335, 341 (1986). The burden is on the plaintiff to show the

inapplicability of the qualified-immunity defense. See McClendon v. City of Columbia, 305 F.3d

314, 323 (5th Cir. 2002) (en banc). 

Paskauskiene brought claims against Basu for violations of § 1981 and § 1983. In other

words, Paskauskiene alleged that Basu illegally fired her based on her national origin. To establish

such a claim, Paskauskiene must prove that: (1) she is a member of a racial minority, (2) Basu

intended to discriminate on the basis of Paskauskiene’s race or national origin, and (3) the

discrimination concerns one or more of the activities enumerated in § 1981. See Felton v. Polles,

315 F.3d 470, 483 (5th Cir. 2002).

It is clear that Basu’s decision to fire Paskauskiene was objectively reasonable. Basu based

her decsion to fire Paskauskiene during her probationary period on that fact that she did not “display

the skills necessary to conduct highly complex cancer research in a competent manner.” (Defs.’

App. at 3, 30-31.) Indeed, the summary-judgment record is devoid of any evidence, other than

Paskauskiene’s self-serving and unsupported statements, that Basu fired Paskauskiene for any reason

other than her substandard job performance. Thus, Basu is entitled to qualified immunity. See, e.g.,

Bluitt v. Houston Indep. Sch. Dist., 236 F. Supp. 2d 703, 729-30 (S.D. Tex. 2002).

 

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7

C. OFFICIAL IMMUNITY

Regarding state-law claims, government employees are entitled to official immunity from

suit arising from the performance of their discretionary duties performed in good faith as long as

they were acting within the scope of their authority. See City of Lancaster v. Chambers, 883 S.W.2d

650, 653-58 (Tex. 1997). Official immunity is an affirmative defense; thus, Basu must conclusively

prove each element of the defense to be entitled to summary judgment. See Univ. of Houston v.

Clark, 38 S.W.3d 578, 580 (Tex. 2000). A discretionary function—as distinguished from a

ministerial duty, which requires rote obedience to orders or performance of a function to which the

actor has no choice—involves a personal deliberation, decision, and judgment. See Chambers, 883

S.W.2d at 654. Whether an action is discretionary or ministerial is a question of law. See

Associated Press v. Cook, 17 S.W.3d 447, 461 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

To obtain official immunity on summary judgment, an official must prove that a reasonably

prudent official might have believed that her action was appropriate under the circumstances. See

id. Even if an official’s actions were taken negligently, that would not be sufficient to defeat a

showing of good faith. Se id. at 655. The test for good faith is objective and is substantially derived

from the test for objective reasonableness in a qualified-immunity claim for federal constitutional

violations. See Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 413 (5th Cir.

2002). 

The summary-judgment evidence shows that Basu had discretion in personnel matters,

including hiring, evaluating, and making decisions such as whether to terminate her research

assistants. (Defs.’ App. at 1-3.) Paskauskiene has provided no controverting proof to show that

Basu’s actions in terminating her employment were not discretionary. As stated in this Court’s

 

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10Because this order, along with this Court’s order of November 20, 2006,

finally disposes of all of Paskauskiene’s claims, the trial setting for August

2007 is CANCELED.

8

discussion of Basu’s qualified immunity, there is no evidence, other than Paskauskiene’s selfserving statements, that Basu acted in bad faith. Indeed, Paskauskiene was an at-will, probationary

employee at the time she was fired. The record does not support Paskauskiene’s allegations that she

was fired on the basis of her national origin. Thus, Basu is entitled to official immunity.

IV . CONCLUSION

Paskauskiene’s common-law claims against UNTHSC and Basu in her official capacity are

barred by the Eleventh Amendment. Thus, these claims are dismissed. Paskauskiene’s § 1981 and

§ 1983 claims against Basu in her individual capacity are barred by Basu’s qualified immunity.

Basu in her individual capacity is entitled to official immunity regarding Paskauskiene’s commonlaw claims. Thus, judgment as a matter of law is appropriate on those claims against Basu

individually.10

 SIGNED March 9, 2007.

 

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