United States Fifth Circuit

In a suit by a dentist dismissed from his position at a state-run home after his return from active military duty, summary judgment for defendant-employer is affirmed in part, and vacated with claims dismissed in part, where: 1) no federal jurisdiction existed to hear plaintiff's Uniformed Services Employment and Reemployment Rights Act (USERRA) claim, as a USERRA claim against the state as an employer was required to be brought in state court; 2) evidence considered at the summary judgment phase was admissible; 3) due process claims against defendant-supervisor in his individual capacity failed because plaintiff did not allege a constitutional due-process violation and because supervisor was entitled to a defense of qualified immunity; 4) due process claims against supervisor in his official capacity were barred by sovereign immunity; and 5) a state-law defamation claim was properly dismissed based on defendant-supervisor's official immunity.

Appellate Information

• Decided 08/11/2008
• Published 08/11/2008

Judges

• GARWOOD, Circuit Judge:, Before GARWOOD, CLEMENT and ELROD, Circuit Judges.

Court

• United States Fifth Circuit

Counsel

• For Appellant:
  
• Joseph Rutherford Willie, II (argued), Willie & Associates, Houston, TX, for McIntosh., Daniel Luke Geyser (argued), Craig H. Russell, Thomas J. Turner, Austin, TX, for Partridge., Sarah Elaine Harrington (argued), Jessica Dunsay Silver, U.S. Dept. of Justice, Civ. Rights Div-App. Section, Washington, DC, for U.S.