United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
JOSEPH C. WILKINSON, Jr., Magistrate Judge.
Plaintiff, Kevin Knudsen, alleges that his employer, the Board of Supervisors of the University of Louisiana System ("the Board"), discriminated against him based on his race by allowing his subordinate to foster a racially hostile work environment and that the Board retaliated against him for having complained about the actions of his subordinate by transferring him to a less desirable position, all in violation of Title VII, 42 U.S.C. § 2000e(k), "and corresponding [but unspecified] state law." Complaint, Record Doc. No. 1 at p. 7. This matter was referred to a United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 10.
The Board filed a motion for summary judgment addressing plaintiff's claims under Title VII and alleging in a footnote that it enjoys Eleventh Amendment immunity from any state law claims. Record Doc. No. 22, at p.1 n.1. Knudsen filed a timely memorandum in opposition, in which he fails to respond to defendant's Eleventh Amendment immunity argument or to argue that any "corresponding state law" applies to his claims. Record Doc. No. 25. A party's failure to brief an argument in response to a summary judgment motion waives that argument. Accordingly, Knudsen is deemed to have abandoned any contention either that he has state law claims or that defendant is not immune under the Eleventh Amendment from being sued in this court for such claims. McDaniel v. Shell Oil Co., 350 F.Appx. 924, 927 (5th Cir. 2009); Blackwell v. Laque, 275 F.Appx. 363, 366 n.3 (5th Cir. 2008); Ledet v. Fleetwood Enters., Inc., 245 F.3d 791, 2000 WL 1910173, at *3 (5th Cir. 2000).
The Board filed a timely reply memorandum in support of its summary judgment motion. Record Doc. No. 26. The memorandum contained two new exhibits, Defendant's Exhibits J and K, which the court did not consider because plaintiff had no opportunity to respond to those exhibits. Even if the court had considered the exhibits, they would not have changed the outcome of this decision.
Having considered the complaint, the record, the arguments of the parties and the applicable law, IT IS ORDERED that the motion is GRANTED IN PART as to plaintiff's retaliation claim and DENIED IN PART as to his hostile work environment claim, for the following reasons.
A. Standards of Review
"A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment 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." Fed.R.Civ.P. 56(a). Rule 56, as revised effective December 1, 2010, establishes new procedures for supporting factual positions:
(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or ...