             Case: 14-12966    Date Filed: 09/02/2015   Page: 1 of 8


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 14-12966
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 2:12-cv-04198-KOB



BOZORGMEHR POUYEH,

                                                               Plaintiff-Appellant,

                                     versus

UAB DEPARTMENT OF OPHTHALMOLOGY, et al.,

                                                                       Defendants,

THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA,
Board Members,
Robert J. Bentley,
In individual capacity and as a member of the Board of Trustees,
Thomas R. Bice,
In individual capacity and as a member of the Board of Trustees,
Paul W. Bryant Jr.,
In individual capacity and as a member of the Board of Trustees,
Karen P. Brooks,
In individual capacity and as a member of the Board of Trustees, et al.,

                                                           Defendants-Appellees.
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                                ________________________

                       Appeal from the United States District Court
                          for the Northern District of Alabama
                              ________________________

                                      (September 2, 2015)

Before ED CARNES, Chief Judge, JULIE CARNES and JILL PRYOR, Circuit
Judges.

PER CURIAM:

       Bozorgmehr Pouyeh, proceeding pro se, appeals the district court’s dismissal

with prejudice of his fourth amended complaint. Pouyeh filed suit after he applied

for and did not receive a position in the residency program of the University of

Alabama at Birmingham (UAB) School of Ophthalmology. His fourth amended

complaint alleged that he was denied a resident position because he was an Iranian

citizen, and that the Board of Trustees of the University of Alabama System, the

Board’s members, UAB, and various UAB employees had violated his federal

statutory and constitutional rights. The district court granted the defendants’

motion to dismiss the complaint for failure to state a claim, doing so with

prejudice. See Fed. R. Civ. P. 12(b)(6). We review that dismissal de novo.

Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).1


   1
     In his brief to this Court, Pouyeh raises several issues that were not presented to the district
court in this case, but were raised in a separate discrimination suit that Pouyeh filed against the
University of Miami for denying him admission to its ophthalmology residency program. See
Pouyeh v. Bascom Palmer Eye Inst., No. 14-13704, 2015 WL 3406538, at *3–4 (11th Cir. May
28, 2015) (unpublished) (addressing Pouyeh’s claim that the Rule 12(b)(6) standard, established


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       Count One asserts that the Board is liable under Title VII because it “has

excluded systematically Iranian doctors from [residency] position[s]” by requiring

them to have graduated from a medical school accredited by either the American

Medical Association (AMA) or the Canadian Medical Association (CMA).

Construed liberally, Count One asserts three claims for relief: (1) a disparate-

treatment claim, (2) a disparate-impact claim, and (3) a pattern-or-practice claim.

       To make out a disparate-treatment claim, Pouyeh’s complaint must contain

factual allegations demonstrating, either directly or circumstantially, that the

Board’s actions were based on his national origin. See Raj v. La. State Univ., 714

F.3d 322, 331 (5th Cir. 2013); cf. EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265,

1272 (11th Cir. 2002) (explaining that, at summary judgment, a disparate-treatment

claim must be supported by direct or circumstantial evidence of discrimination).

Here, the complaint does not “contain sufficient factual matter” to plausibly

suggest that the Board intentionally excluded Pouyeh and other applicants based on

their national origin. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,

1949 (2009). The most plausible explanation — indeed, the one provided in the



by the Supreme Court’s decisions in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, is
unconstitutional). We will not address those issues because they were not presented to the
district court in this case. See Harris Corp. v. Nat’l Iranian Radio & Television, 691 F.2d 1344,
1353 (11th Cir. 1982) (“Generally, an appellate court will not consider issues not raised in the
district court.”); see also Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d
1164, 1167 (11th Cir. 2004) (rejecting the practice of incorporating by reference the arguments
that a party made in a brief that it filed outside of the appeal before the court).


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complaint itself — is that Pouyeh was disqualified from consideration because he

did not graduate from an AMA- or CMA-accredited medical school. 2 Rejecting

applicants based on whether the medical schools they attended were accredited by

the AMA or the CMA is not discrimination based on national origin. See

Maceluch v. Wysong, 680 F.2d 1062, 1065 (5th Cir. 1982) (explaining that a

policy “based upon the locality of the education received” does not discriminate

based on alienage because “[s]ubstantial numbers of Americans attend medical

schools abroad, just as some foreigners attend medical schools in the United

States”). Pouyeh’s complaint therefore has not alleged facts that establish a

plausible Title VII disparate-treatment claim. See Iqbal, 556 U.S. at 678, 129

S. Ct. at 1949 (“Where a complaint pleads facts that are merely consistent with a

defendant’s liability, it stops short of the line between possibility and plausibility

of entitlement to relief.”) (quotation marks omitted).

       To make out a disparate-impact claim, Pouyeh must allege facts establishing

that the Board’s admission policy has a “significant adverse effect[]” on a

protected group. Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807–08

(11th Cir. 2010) (quotation marks omitted). That requires factual allegations —

usually a statistical disparity — demonstrating a disparity in treatment between

   2
      Because the fourth amended complaint asserts that this is the policy governing admission to
UAB’s School of Ophthalmology, we must assume that it is. See Corsello v. Lincare, Inc., 428
F.3d 1008, 1012 (11th Cir. 2005) (“On a motion to dismiss for failure to state a claim, we accept
as true the facts as alleged in the complaint.”).


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groups so significant that it supports an inference that discrimination is the cause.

See id.; Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1314–15 (11th Cir.

1994). Pouyeh’s complaint contains no such factual allegations, only the bare

assertion that the Board has “excluded systematically Iranian doctors” and that one

of Pouyeh’s friends from Iran was also denied a residency position at UAB’s

School of Ophthalmology. That is not enough.

      And as for the pattern-or-practice claim, such claims may be brought under

Title VII by the government or by a class of private plaintiffs under Federal Rule

of Civil Procedure 23(b)(2). Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d

955, 964–65 (11th Cir. 2008); Joe’s Stone Crab, 220 F.3d at 1286. Pouyeh is not

the government, and he has not brought a class action under Rule 23(b)(2). He has

therefore failed to state a claim for relief under a pattern-or-practice theory.

      Count Two asserts that the Board is liable under 42 U.S.C. § 1981 for

discrimination against Pouyeh based on “his alienage/National Origin.” This claim

is barred by the Eleventh Amendment, which prevents federal courts from hearing

a § 1981 claim “in which the state or one or more of its agencies is . . . the

defendant,” Brown v. E. Cent. Health Dist., 752 F.2d 615, 617 (11th Cir. 1985).

The Board is a state agency. See Harden v. Adams, 760 F.2d 1158, 1163–64 (11th

Cir. 1985) (holding that Alabama’s state university boards are state agencies for




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purposes of the Eleventh Amendment). So Pouyeh has not stated a claim for relief

under § 1981.

       Count Three alleges that UAB and the Board violated Title VI because they

“excluded systematically Iranian doctors from ophthalmology residency and

internship positions.” Title VI provides that: “No person in the United States

shall, on the ground of . . . national origin, be excluded from participation in, be

denied the benefits of, or be subjected to discrimination under any program or

activity receiving Federal financial assistance.” 3 42 U.S.C. § 2000d. A defendant

is not liable under Title VI unless the defendant’s actions constitute a violation of

the Fourteenth Amendment’s Equal Protection Clause. See I.L. v. Alabama, 739

F.3d 1273, 1288 n.10 (11th Cir. 2014). As we have already explained, rejecting an

applicant based on whether his medical school was accredited by the AMA or the

CMA is not discrimination based on the applicant’s national origin. See Maceluch,

680 F.2d at 1065–67. UAB’s requirement that applicants attend an AMA- or

CMA-certified medical school is therefore subject only to rational basis review,

and it satisfies the rational-basis test. Cf. id. (holding that a State’s refusal to grant

“the ‘M.D.’ designation” to individuals with a “Doctor of Osteopathy” degree is




   3
     In his brief to this Court, Pouyeh also asserts that he has a claim to relief under 42 U.S.C.
§ 2000d-3. He did not raise this theory of liability in the district court, so we will not consider it
here. Fils v. City of Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011) (“To prevail on a particular
theory of liability, a party must present that argument to the district court.”).


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subject to, and satisfies, the rational-basis test). Pouyeh has failed to state a claim

for relief under Title VI.

      The remaining four counts of Pouyeh’s complaint assert the same two

theories of liability against the individual members of the Board and three UAB

employees. Those counts allege that the individual defendants: (1) deprived

Pouyeh “of equal benefit of laws” under Title VI and Title VII; and (2) violated his

“constitutionally substantive due process right to employment, education,

obtaining license to continue his profession in the United States, appropriate

socioeconomic status, property, and marriage.” Pouyeh has failed to state a claim

based on the first theory because there is no individual liability under Title VI or

Title VII. Shotz v. City of Plantation, 344 F.3d 1161, 1171 (11th Cir. 2003) (“It is

beyond question . . . that individuals are not liable under Title VI.”); Busby v. City

of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (“The relief granted under Title VII

is against the employer, not individual employees whose actions would constitute a

violation of the Act.”).

      Pouyeh has failed to state a claim against the individual defendants under his

second theory because he has not identified a constitutional right that was actually

violated. Except for marriage, there is no substantive due process right to any of

the items that Pouyeh claims as constitutional rights. See Pollard v. Cockrell, 578




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F.2d 1002, 1011 (5th Cir. 1978)4 (rejecting the notion that there is a substantive

due process “right to engage in a lawful business, trade, or profession”);

Mahavongsanan v. Hall, 529 F.2d 448, 450 (5th Cir. 1976) (rejecting a substantive

due process right to higher education). And the complaint does not provide any

explanation for how denying Pouyeh a residency position infringed on his

constitutionally protected right to marry. Cf. Zablocki v. Redhail, 434 U.S. 374,

386, 98 S. Ct. 673, 681 (1978) (rejecting the notion “that every state regulation

which relates in any way to the incidents of or prerequisites for marriage must be

subjected to rigorous scrutiny” and declaring that “reasonable regulations that do

not significantly interfere with decisions to enter into the marital relationship may

legitimately be imposed”).

       AFFIRMED.




   4
     In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all decisions of the former Fifth Circuit handed down before October 1,
1981.


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