Rosie Washington v. State of Louisiana , 628 F. App'x 914 ( 2015 )

Case: 14-31231 Document: 00513249748 Page: 1 Date Filed: 10/28/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 28, 2015
No. 14-31231
Lyle W. Cayce
Clerk
SHELDON WASHINGTON, Individually, and on Behalf of the Estate of
Rosie Washington,
Plaintiff - Appellant
v.
STATE OF LOUISIANA; DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONS; LOUISIANA STATE PENITENTIARY; BURL CAIN;
MARY ANNETTE DUBROC; GWEN HARDIN; L. BRUCE DODD; DONALD
BARR; RONALD JETT; STACEY FALGOUT; JENNIFER LEMOINE;
CLARION BAY; SHARON DUNBAR; LINDA BOREDELON,
Defendants - Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:11-CV-334
Before JOLLY, HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Rosie Washington, a former nurse at the Louisiana State Penitentiary,
brought suit alleging discrimination under a variety of theories. The trial court
granted motions to dismiss all claims other than her claims of discrimination,
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 14-31231
retaliation, and hostile work environment under Title VII of the Civil Rights
Act; the trial court subsequently granted a motion for summary judgment
against her remaining claims.
Washington appeals. We affirm.
I.
Washington was a licensed practical nurse who worked for the Louisiana
State Penitentiary from 2001 to 2011. Washington alleges she suffered racial
discrimination, beginning in 2008. She alleges that the discrimination began
when she refused to switch from the night shift to the day shift to accommodate
a white couple who wished to work together. During the course of the alleged
discrimination, the penitentiary disciplined Washington on three occasions,
and recorded her alleged conduct in three Employee Violation Reports;
Washington alleges these reports and the resulting punishments were
motivated by racial discrimination. She alleges that other discriminatory acts
included denying her requests for leave while granting requests from similarly
situated white employees, over-counting her absences from work (and thus
over-deducting time from her leave hours), disciplining her more harshly than
white employees involved in the same misconduct, and firing her because of
her race.
In early 2011 Washington sued multiple defendants. Washington sought
declaratory and injunctive relief and damages under state laws, federal laws,
the Louisiana Constitution, and the United States Constitution. The
injunctive relief Washington sought included an injunction prohibiting the
penitentiary from firing her. Washington’s husband, Sheldon Washington,
sought recovery for the emotional damages from observing his wife suffer
discrimination.
The defendants filed a motion to dismiss. The district court granted the
motion in part, dismissing all of Washington’s non-Title VII claims. The case
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proceeded on for nearly two years, during which time no discovery occurred.
During this period, the employment relationship between Washington and the
penitentiary ended, in a manner not clear from the record. 1 Subsequently, the
magistrate judge recommended that Washington withdraw her still-pending
motion for an injunction precluding the penitentiary from firing her. Believing
that this suggestion was improper, Washington moved for “a statement of
judicial interests,” seeking to have the magistrate judge declare any financial
interests he has in the defendants. The district court denied this motion.
The defendants moved for summary judgment. In support of their
motion, they attached an affidavit by Sharon Augustine, the Human Resources
Manager at the Louisiana Department of Corrections. The district court found
that this affidavit was based on personal knowledge and, because the record
contained no other evidence, accepted it as true. Based on that affidavit, the
district court granted summary judgment. Washington filed a timely appeal.
II.
“We review de novo a district court’s grant or denial of a Rule 12(b)(6)
motion to dismiss, accepting all well-pleaded facts as true and viewing those
facts in the light most favorable to the plaintiff.” Hines v. Alldredge, 783 F.3d
197, 200–01 (5th Cir. 2015). Similarly,
We review the grant or denial of a motion for summary
judgment de novo, applying the same standard as the
district court. Summary judgment is appropriate if
the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to
judgment as a matter of law.
1 In pleadings, Washington claims she was fired. The only record evidence on this
matter states that “at no point during the course of her employment . . . was Mrs. Washington
fired.” Although the facts are not clear, it seems most likely that Washington resigned under
pressure, perhaps as part of an agreement that entitled her to continued health coverage.
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Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 856 (5th
Cir. 2014). A trial court’s determination that an affidavit is based on personal
knowledge—and therefore may be used to support or oppose a motion for
summary judgment—is reviewed for abuse of discretion. Diamond Offshore
Co. v. A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir. 2002), overruled on
other grounds by Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d
778 (5th Cir. 2009). We review motions for injunctive relief (including the
motion for a statement of judicial interest) for abuse of discretion. Ladd v.
Livingston, 777 F.3d 286, 288 (5th Cir. 2015).
III.
The district court did not err in granting the motion to dismiss and
thereby dismissing the majority of Washington’s claims. Many of her claims
were against the state or were suits seeking monetary damages from state
employees acting in their official capacities; these claims are barred by the
Eleventh Amendment. See Champagne v. Jefferson Parish Sheriff’s Office, 188
F.3d 312, 313–314 (5th Cir. 1999). She also claimed that alleged workplace
discrimination violated the United States Constitution. These claims are
without merit. A suspension from work, even without pay, does not violate the
Thirteenth Amendment’s prohibition on slavery. Nor is suspension without
pay a taking without due process in violation of the Fifth Amendment when
Washington could challenge the suspension in several ways. Punishment for
on-the-job insults does not violate the First Amendment’s protection of free
speech. Cf. Stewart v. Parish of Jefferson, 951 F.2d 681 (5th Cir. 1992). Her
other constitutional claims are equally without merit.
Similarly, her state law and state constitutional claims do not state a
cause of action upon which relief can be granted. Washington alleges that she
was discriminated against in violation of Article I, Section 3 of the Louisiana
Constitution. This provision does not create a private right of action, however,
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and thus this claim fails. Smolensky v. General Electric Co., 2000 WL 341031
(E.D. La. 2000). Washington generally alleges that torts were committed
against her in violation of La. Civil Code article 2315. She does not provide
any factual allegations that would support this claim, however, and thus it was
properly dismissed. Her other state-law claims are equally unsupported; the
district court properly dismissed them. Sheldon Washington’s claim fails
because, even assuming that discrimination caused Washington to suffer some
traumatic injury, Sheldon Washington neither witnessed that injury nor came
upon it soon afterward.
The district court also did not err in subsequently granting summary
judgment against Washington’s Title VII claims. The only evidence before the
district court was the affidavit provided by Sharon Augustine. Personal
knowledge can be inferred from an affiant’s position or other evidence.
DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir. 2005). The district court
therefore did not abuse its discretion in determining that this affidavit was
based on personal knowledge. This affidavit supported the defendants’
contention that Washington was not treated differently because of her race and
that similarly situated employees who acted as Washington did received the
same treatment. A single affidavit can support summary judgment. Travelers
Ins. Co. v. Liljeberg Enterprises, Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
Washington did not provide any record evidence; her assertion that signed
pleadings provide enough support to withstand a motion for summary
judgment is without merit. See Tebo v. Tebo, 550 F.3d 492, 498 (5th Cir. 2008).
In the absence of any contrary evidence, no genuine dispute existed regarding
any material fact and the trial court correctly granted summary judgment.
Finally, Washington asserts that the district court incorrectly denied her
motions for injunctive relief. Once Washington was no longer employed by the
defendants, her motion seeking an injunction precluding the penitentiary from
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firing her became moot and the court did not err by dismissing that motion
without prejudice. Further, because Washington was free to refile her motion,
she was not significantly harmed by that dismissal.
Similarly, the court did not abuse its discretion in denying Washington’s
“motion for a statement of judicial interest.” Washington claims that the
magistrate judge acted improperly by suggesting that Washington withdraw a
motion for injunctive relief after her employment situation changed.
Withdrawing this motion would not have prejudiced Washington; suggesting
that she withdraw it was not improper. Thus, the district court did not abuse
its discretion in denying Washington’s motion. See Ladd v. Livingston, 777
F.3d 286, 288 (5th Cir. 2015).
Accordingly, the judgment of the district court is AFFIRMED.
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