IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-60407 _____________________

AHMAD A. VADIE,

Plaintiff-Appellee,

versus

MISSISSIPPI STATE UNIVERSITY; DONALD HILL, Individually and in his Official Capacity; ROBERT A. ALTENKIRCH, Dean, Individually and in his Official Capacity,

Defendants-Appellants. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Mississippi (1:95-CV-199-D-D) _________________________________________________________________ February 17, 1997

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Dr. Ahmad A. Vadie served as a tenured professor at

Mississippi State University. In 1992, Vadie was notified that the

department in which he worked was to be eliminated. Vadie

interviewed for alternative positions that became available at MSU,

but he was not hired.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Vadie sued MSU, Dean Robert A. Altenkirch and Dr. Donald Hill

(collectively the "Defendants") contending he was denied a faculty

position because of his race and national origin, in violation of

42 U.S.C.§ 2000e to 2000e-17 (Title VII),

and

.

The Defendants filed a motion to dismiss or, in the

alternative, a motion for summary judgment contending they were

protected by qualified immunity and sovereign immunity. They also

moved for summary judgment contending that Vadie failed to produce

sufficient evidence to support his claims. The district court

dismissed all claims Vadie alleged against MSU under § 1981 and

§ 1983 for money damages, and dismissed all claims against Hill and

Altenkirch acting in their individual capacity. The district court

allowed the remainder of Vadie’s complaints to proceed.

The Defendants filed an interlocutory appeal. Although

Vadie’s complaint and the district court opinion are somewhat

ambiguous on this point, Vadie’s appellee brief makes clear that he

has abandoned all claims against Hill and Altenkirch in their

individual capacities and all claims against MSU under § 1981 or

§ 1983. Therefore, Vadie may no longer pursue these claims. The

only issues appealed by the Defendants are: whether Hill and

Altenkirch, acting in their official capacities, are shielded by

the Eleventh Amendment from liability under Title VII; whether MSU

is shielded by the Eleventh Amendment from liability under Title

VII; and whether the Defendants can appeal the district court’s

-2- denial of summary judgment based on the sufficiency of the

evidence.

I

The Defendants contend that the Eleventh Amendment renders

them immune from suit. Although sovereign immunity does shield

states from suit, Congress may abrogate a state’s sovereign

immunity when it legislates pursuant to section 5 of the Fourteenth

Amendment, although it must unequivocally express its intent to do

so. Seminole Tribe of Fla. v. Florida,

, ___,

(1996).

The Supreme Court has held that Title VII was enacted pursuant

to powers granted under the Fourteenth Amendment, and in enacting

Title VII, Congress had expressly abrogated the States’ Eleventh

Amendment immunity. Fitzpatrick v. Bitzer,

, 452-53 &

n.9,

(1976). The Supreme Court has given no

indication that the holding in Fitzpatrick is unsound. Indeed, in

Seminole Tribe, both the majority and Justice Stevens' dissent rely

upon Fitzpatrick. Id. at 1125, 1134. Moreover, Fitzpatrick is

routinely relied upon for the proposition that Congress has

abrogated the States' immunity by enacting Title VII. See, e.g.,

Patsy v. Board of Regents,

, 531 n.15,

(1982); Winbush v. Iowa,

(8th Cir. 1995); Davis

v. State University of New York,

, 640 n.1 (2d Cir.

1986); Laskaris v. Thornburgh,

(3d Cir. 1981).

-3- The appellants suggest that the Seminole Tribe, "casts doubt

upon" Fitzpatrick by introducing the requirement that Congress

speak with clarity when abrogating the Eleventh Amendment immunity.

Seminole Tribe,

. In truth, the requirement of a

clear statement is not new; the Supreme Court has repeatedly

emphasized that the statutory language eliminating state sovereign

immunity must be unequivocal. See Blatchford v. Native Village of

Noatak & Circle Village,

,

(1991)(Congress' intent to abrogate the States' immunity from suit

must be obvious from a clear legislative statement); Dellmuth v.

Muth,

,

(1989)(noting that Congress must

make its intention to abrogate the States' sovereign immunity

"unmistakably clear in the language of the statute"); Atascadero

State Hosp. v. Scanlon,

,

(1985) ("a

general authorization for suit in federal court is not the kind of

unequivocal statutory language sufficient to abrogate the Eleventh

Amendment"). Seminole Tribe did not change the existing law on

this point. Therefore, MSU is not protected by sovereign immunity

when sued under Title VII.

Similarly, Hill and Altenkirch may be sued in their official

capacities. “Federal claims against state employees in their

official capacities are the equivalent of suits against the state.”

Ganther v. Ingle,

(5th Cir. 1996)(footnote

omitted). Because the state is subject to suit under Title VII,

-4- employees of the state may also be sued in their official

capacities.1

II

The Defendants contend that Vadie has failed to provide

evidence sufficient to overcome their summary judgment motion. The

district court denied the Defendants’ motion. This ruling,

however, is not subject to an interlocutory appeal.

A district court's denial of a summary judgment motion is

ordinarily not appealable. See Feagley v. Waddill,

(5th Cir. 1989). Nonetheless, rulings that are not themselves

independently appealable before judgment, may be appealed if they

are “inextricably intertwined” with a district court’s denial of

immunity. See, e.g., Martin v. Memorial Hosp.,

(1996)

quoting Swint v. Chambers County Comm’n,

(1995).

The Defendants make no attempt to demonstrate a connection between

the resolution of the qualified immunity issue and the sufficiency

of the evidence question. We see no inextricable linking.

1 Several lower courts have held that because a suit against an employee acting in an official capacity is the equivalent of a suit against an employer, a plaintiff is not allowed to sue both parties. See, e.g., Dufrene v. Pellittieri, Civ. A. No. 95-3806,

, (E.D.La. Aug. 29, 1996)(discussing relevant authority and concluding suit against both employer and employee acting in official capacity was duplicative); see also, Allen v. Tulane Univ., No. 92-4070,

(E.D.La. Nov. 2, 1993)(may not sue both employer and supervisor in official capacity); Keley v. Troy State Univ.,

(M.D.Ala. 1996)(same). Although this position appears reasonable, no party raised this issue on appeal and we therefore refrain from ruling upon it.

-5- Therefore, the Defendants may not appeal the district court's

denial of their summary judgment motion insofar as it relates to

the sufficiency of evidence. The appeal on this ground is

therefore dismissed.

In summary, all claims against MSU under § 1981 and § 1983 are

abandoned; all claims against Hill and Altenkirch in their

individual capacities are abandoned; the Title VII claims against

Hill and Altenkirch acting in their official capacities may

proceed; and, finally, the Title VII claim against MSU may proceed.

For the reasons stated above, this appeal is DISMISSED in part

and the district court’s judgment that MSU, Hill and Altenkirch are

not protected from Title VII liability by the Eleventh Amendment is

AFFIRMED.

DISMISSED in part and AFFIRMED in part.

-6-