            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 00-30389
                                         Summary Calendar
                                         _______________



                                  ASODOLLAH HAYATAVOUDI,

                                                                    Plaintiff-Appellant,

                                              VERSUS

                UNIVERSITY OF LOUISIANA SYSTEM BOARD OF TRUSTEES
                                                   AND
                        UNIVERSITY OF SOUTHWESTERN LOUISIANA,

                                                                    Defendants-Appellees.


                                   _________________________

                            Appeal from the United States District Court
                               for the Western District of Louisiana
                                          (97-CV-1846)
                                  _________________________
                                        November 27, 2000


Before SMITH, BENAVIDES, and                                Asodollah Hayatavoudi appeals a summary
  DENNIS, Circuit Judges.                                judgment in favor of the University of Loui-
                                                         siana System Board of Trustees and the Uni-
JERRY E. SMITH, Circuit Judge:*                          versity of Southwestern Louisiana2 (collec

                                                            *
                                                                (...continued)
                                                         R. 47.5.4.
   *
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be                  2
                                                             We take judicial notice that the University of
published and is not precedent except under the          Southwestern Louisiana has since changed its name
limited circumstances set forth in 5TH CIR.                                                   (continued...)
tively, the “University”) on his title VII claim           was U.S. born.” Second, Hayatavoudi com-
of employment discrimination. Because we                   plains about unfavorable performance ratings
agree with the district court that Hayatavoudi             from supervisors, resulting in lost raises.
adduced insufficient evidence of discrimination            Third, he objects to the 1994 expiration of his
to allow a reasonable jury to find the Uni-                endowed professorship, the revocation of a
versity liable, we affirm.                                 research stipend, and the alleged failure to pay
                                                           for consulting work. Fourth, he claims he was
                      I.                                   subjected to “harsher working conditions” to
   Hayatavoudi, an Iranian-American of the                 “discourage him from continuing in his posi-
Shiite Moslem faith, is a tenured professor in             tion.” Fifth, he alleges that Ponter and Reike
the petroleum engineering department, headed               “continuously [made] defamatory remarks”
by Herman Reike, who joined the University in              about him to students and faculty.
1994.3 Hayatavoudi has taught at the Uni-
versity since 1980, except for periods of time                 In addition to adverse actions, Hayatavoudi
he spent on sabbatical at Stanford University              alleges instances of racial harassment. The
and on leave because of an injury. With one                first is a comment made by a colleagueSSwho
exception, however, the events relevant to this            has since transferred from the petroleum en-
appeal occurred after 1992.                                gineering department to the chemical engin-
                                                           eering departmentSSduring the Iran hostage
   Hayatavoudi alleges several adverse em-                 crisis of the early 1980’s, in which the col-
ployment actions.4 First, he complains that in             league called Hayatavoudi “Ayatolla Asodol-
1994, his supervising dean, Anthony Ponter,                lah.” Hayatavoudi also alleges that the same
wrongfully denied him a promotion to de-                   colleague lunged at him during a 1982 meet-
partment head in favor of a “white male who                ing, calling him names and referring to him as
                                                           “dead meat.”

   2
    (...continued)
                                                              Further, Hayatavoudi contends that
to the University of Louisiana at Lafayette.               “toward the middle of the [spring] semester of
                                                           1995,” Reike sang a “Jewish song” in his
   3
      We assumeSSwithout decidingSSthat Rieke’s            presence. Hayatavoudi also alleges that,
position as department head places him in a su-            sometime “during the fall or spring of 1996,”
pervisory position over Hayatavoudi for purposes           Reike told him that, while Reike had been in
of title VII analysis.                                     Saudi Arabia, he had seen Saudis “getting rid
   4
                                                           of their amadies.”5
     Because this appeal arises from a summary
judgment, we recount the facts in the light most              The primary basis for Hayatavoudi’s com-
favorable to the non-movant, Hayatavoudi. See
                                                           plaint, however, appears to be a March 5,
Duffy v. Leading Edge Prods., Inc., 44 F.3d 308,
312 (5th Cir. 1995). This does not mean, however,
                                                           1996, altercation between him and Reike stem-
that we must give credence to unsupported                  ming from a departmental meeting in which
allegations: “[C]onclusory allegations unsupported         Reike notified the faculty that it would not be
by concrete and particular facts will not prevent an
award of summary judgment.”             Id. (citing
                                                              5
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,                  An “amady” appears to be a piece of religious
247 (1986).                                                clothing in the Shiite religion.

                                                       2
allowed to utilize the services of the                                            II.
depart ment secretary as much as in the past.                 In October 1996, Hayatavoudi filed a
Upset, the faculty members walked out of the               “charge questionnaire” with the Equal Em-
meeting.                                                   ployment Opportunity Commission (“EEOC”)
                                                           complaining of discrimination on the basis of
   Apparently feeling that Hayatavoudi had led             race, religion, nationality, age, and disability.
the uprising, Reike co nfronted him in the                 That charge questionnaire led to an EEOC
hallway after the meeting. Reike, who is                   complaint in May 1997. The EEOC dismissed
white, told Hayatavoudi that he was like “the              the complaint in a right-to-sue letter a month
dogs in the desert, howling as the caravan goes            later.
by,” which, according to Reike, is a reference
to an Arabic proverb. Reike also proclaimed                    Shortly thereafter, Hayatavoudi filed the
that Hayatavoudi had wasted departmental                   instant complaint alleging title VII claims on
assets and equated the waste with thievery.                theories of adverse employment action and
The altercation escalated and ended with a                 hostile work environment. After discovery,
physical confrontation during which, according             the University moved for summary judgment,
to Hayatavoudi, Reike bumped him and called                which the district court granted after a hearing,
him an idiot. Hayatavoudi then touched                     ruling that Hayatavoudi had produced no
Reike, at which point Reike told Hayatavoudi               evidence indicating that Reike’s evaluations
that he had made a “fatal mistake.”6                       were mo t ivated by impermissible
                                                           discrimination, that Hayatavoudi had not
   6
                                                           produced sufficient evidence that the
     The evidence conflicts regarding the substance        admittedly hostile environment was the result
of the physical confrontation. Hayatavoudi
                                                           of discriminatory animus, and that all the other
testified in his deposition that Reike “started com-
                                                           complained-of events occurred more than 300
ing at [Hayatavoudi] with his stomach in front and
started to touch [him],” at which point Hayatavou-         days before the filing of the EEOC charges and
di merely asked Reike to calm down. Then, ac-              thus were prescribed under title VII.
cording to Hayatavoudi, Reike proclaimed, “You
touched me, you made your fatal mistake.” Hay-                Hayatavoudi appeals the portion of the
atavoudi maintained a calm demeanor throughout             summary judgment rationale that concludes
the altercation.                                           that he had produced insufficient evidence of
                                                           a hostile work environment. He concedes,
   In contrast, Reike contends that he and Hay-            however, that his “individual claims of adverse
atavoudi began screaming at one another, with
Reike pointing his finger at Hayatavoudi's face. In
response, Hayatavoudi shoved Reike, at which
                                                              6
point Reike said, “You assaulted me” and told                 (...continued)
Hayatavoudi he had made a fatal mistake, implying              Viewing the facts most favorably to Hayatavou-
that Hayatavoudi would be punished by the                  di, Reike bumped into Hayatavoudi, causing the
University for the assault. Reike also contends that       physical confrontation. We find it troubling that,
he did not bump Hayatavoudi, but instead that              while both parties agree that several observers
Hayatavoudi bumped into him. Reike merely                  witnessed the confrontation, neither has produced
placed his own hands behind his back and “was              supporting testimony from any of these witnesses,
going to take the hit.”                                    who could presumably confirm either
                                      (continued...)       Hayatavoudi’s or Reike’s version of the facts.

                                                       3
employment actions are barred by prescription            severity; whether it is physically threatening or
or are independently insufficient to constitute          humiliating, or a mere offensive utterance; and
a claim for discrimination. . . . [He] does,             whether it unreasonably interferes with an
however, reference [those] claims . . . as               employee’s work performance.” Faragher v.
supporting evidence that he was subjected to             City of Boca Raton, 524 U.S. 775, 787-88
a hostile environment.”                                  (1998) (internal quotation marks omitted).7

                      III.                                   To violate title VII, discriminatory conduct
   We review a summary judgment de novo,                 must be “so severe or pervasive as to alter the
applying the same standard as did that court.            conditions of [the victim’s] employment.” Id.
See Waymire v. Harris County, 86 F.3d 424,               at 786 (internal quotation marks omitted, mod-
427 (5th Cir. 1996). To survive a motion for             ification in original). Moreover, “an em-
summary judgment, the non-moving party                   ployee’s subjective belief of discrimination,
must present sufficient evidence to support the          however genuine, cannot be the basis of
elements of its prima facie case. See Celotex            judicial relief.” Vance v. Union Planters
Corp. v. Catrett, 477 U.S. 317, 321-23                   Corp., 209 F.3d 438, 444 (5th Cir. 2000)
(1986). “Conclusory allegations unsupported              (internal quotation marks omitted).
by specific facts, however, will not prevent an
award of summary judgment; ‘the plaintiff                                    A.
[can]not rest on his allegations . . . to get to a          Hayatavoudi acknowledges the infirmity of
jury without any significant probative evidence          any claims related to employment actions
tending to support the complaint.’” National             taken more than 300 days before the filing of
Ass’n of Gov. Employees v. City Pub. Serv.               his EEOC questionnaire.8 Nor does he
Bd., 40 F.3d 698, 713 (5th Cir. 1994) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986)) (modifications in original).               7
                                                               Although Faragher dealt specifically with
                                                         sexual harassment, the Court drew heavily from
                       IV.                               precedent involving racial harassment, noting that,
    To survive summary judgment on a hostile             “[a]lthough racial and sexual harassment will often
work environment claim, a plaintiff must es-             take different forms, and standards my [sic] not be
tablish an issue of fact with respect to each of         entirely interchangeable, we think there is good
the elements: “(1) racially discriminatory intim-        sense in seeking generally to harmonize the
idation, ridicule and insults that are; (2) suf-         standards of what amounts to actionable
ficiently severe or pervasive that they; (3) alter       harassment.” Faragher, 524 U.S. at 786-87 &
the conditions of employment; and (4) create             n.1.
an abusive working environment.” Walker v.                  8
Thompson, 214 F.3d 615, 625 (5th Cir. 2000)                    Title VII imposes time limits on plaintiffs
                                                         seeking to recover for discriminatory actions. See
(citing DeAngelis v. El Paso Mun. Police
                                                         42 U.S.C. § 2000e-5(e)(1). When a state or local-
Officers Ass’n, 51 F.3d 591, 594 (5th Cir.               ity provides for an administrative mechanism to
1995)). To determine whether a work en-                  address complaints, as is the case here, a title VII
vironment is impermissibly abusive, a court              plaintiff may not recover for discrimination or
must consider all aspects of the discriminatory          harassment occurring more than 300 days before
conduct, including “[its] frequency . . .; its           the filing of an EEOC complaint. See id.; Hucka-
                                                                                               (continued...)

                                                     4
contend that the “continuing violation” theory              decide whether they might properly be used as
serves to insulate those claims from the statute            evidence supporting a claim of current hostile
of limitations.9 Instead, he argues that his em-            environment.
ployment history with the University serves as
evidence of the hostile nature of his                          In analyzing each of the alleged adverse
relationship with that employer.                            actions, we apply the framework established in
                                                            McDonnell Douglas Corp. v. Green, 411 U.S.
   Although he cites no authority for his posi-             792 (1973),10 under which a plaintiff seeking
tion, Hayatavoudi argues that, despite the ab-              to survive summary judgment must establish a
sence of any allegation of a continuing                     prima facie case of discrimination. See Reeves
violation, he may use past events as evidence               v. Sanderson Plumbing Prods., Inc., 120 S.
of a hostile work environment when actual                   Ct. 2097, 2106 (2000). The defendant may
recovery for those events would be barred by                rebut the prima facie case by producing a
limitations.   Because we conclude that                     legitimate, non-discriminatory justification for
Hayatavoudi has produced no evidence that                   the employment action; upon such a showing,
the past employment actions were motivated                  the McDonnell Douglas framework
by discriminatory animus and, thus, that they               disappears, and the remaining issue is
are of no probative value in evaluating his                 “discrimination vel non.”        Id. (internal
hostile work environment claim, we need not                 quotation marks omitted).

                                                                To survive summary judgment, however,
   8
    (...continued)                                          the plaintiff may still show that the defendant’s
bay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998).            proffered justification is mere pretext. See id.
                                                            A showing of pretext may, on its own, allow a
    Because neither party addresses the issue of
                                                            trier of fact to infer discriminatory motive. See
whether the filing of a “charge questionnaire” with
the EEOC tolls the statute of limitations under title       id. at 2108.
VII, we assume, arguendo, that it does. Title VII’s
time limits are not jurisdictional and therefore may           The first employment action Hayatavoudi
be waived by a party for whom they would                    describes is Ponter’s failure to consider him for
otherwise serve as a defense. See Zipes v. Trans            appointment to department head. Hayatavoudi
World Airlines, Inc., 455 U.S. 385, 393 (1982).             cites Ponter’s deposition testimony that in
Thus, to the extent that the University may have            choosing a department head, Ponter preferred
been able to assert a defense based on the fact that
Hayatavoudi’s EEOC complaint was not filed until
                                                               10
June 1997, it has waived that defense by failing to                 Normally, the McDonnell Douglas
assert it on appeal.                                        framework is used in analyzing claims of
                                                            discrimination based on adverse employment
   9
      See, e.g., Webb v. Cardiothoracic Surgery             action. As discussed supra, Hayatavoudi admits
Assocs., P.A., 139 F.3d 532, 537 (5th Cir. 1998)            that he has no viable claims for discriminatory
(“Application of [the continuing violation” theory          employment actions. Because, however, he
relieves a Title VII plaintiff from the burdens of          contends that past employment actions are evidence
proving that the entire violation occurred within the       of a hostile work environment, we must evaluate
actionable period provided the plaintiff can show a         those actions for discriminatory animus. The
series of related acts, one or more of which falls          McDonnell Douglas framework is an appropriate
within the limitations period.”).                           device by which to do so.

                                                        5
“American born” citizens to those of foreign                contends that the unfavorable scores and
nationality. Standing alone, such a statement               comments included in his evaluations are the
might be indicative of discriminatory animus;               result of discriminatory animus and are not
in the deposition, however, Ponter also                     indicative of his actual performance. The
indicated his basis for the statement, that under           record reflects that, while Hayatavoudi’s
his view of United States immigration law, “if              overall scores are generally unfavorableSShe
you have a U.S. citizen and a foreigner with                has received a rating of four every year since
exactly the same qualification, you take the                Reike began the evaluation process, except for
U.S. citizen.” Viewed in context, Ponter’s                  1997, when he received a “three-star”12SSthey
assertion represents merely an imprecise                    are not substantially worse than those of any
formulation of his (accurate) view of the                   other member of the department, with the
University’s rights under federal immigration               exception of Ali Ghalambour, an Iranian
law.11                                                      professor who consistently receives ratings of
                                                            one and two. Notably, Hayatavoudi has failed
    More importantly, the University has ar-                to show that he was treated differently, with
ticulated a legitimate, non-discriminatory justi-           respect to his overall scores, from any non-
fication for its failure to consider Hayatavoudi            minority member of the department.13
for the position.            Gary Marota, the
University’s vice president for academic                       More than the overall scores, Hayatavoudi
affairs, indicated that he had instructed Ponter            complains about his ratings in the area of re-
to look for a department head from outside the              search, where he has received consistently low
department, given the fact that every member                scores.14 The record reflects, however, that
of the department, including Hayatavoudi, had               the unfavorable evaluations were always ac-
in the past served as department head, each                 companied by detailed explanations, providing
“with great disaster.” Given this legitimate                legitimate justification for the ratings.
justification for hiring Reike, an outsider,                Hayatavoudi often failed to sign the
instead of Hayatavoudi, and the inability of                evaluations, because he felt they were unfair,
Hayatavoudi to show that the justification is
pretext, we cannot conclude that the
University's choice of department head results                 12
                                                                    The faculty rating system allows an
from any racial, ethnic, or religious animus.               evaluatorSSin this case, ReikeSSto assign ratings
                                                            from one to four. One is the highest rating a
   Hayatavoudi complains about                   his        professor can attain under the system, while four
unfavorable performance evaluations.             He         indicates unsatisfactory performance.          Three
                                                            indicates satisfactory performance, while “three-
                                                            star” indicates performance at a level slightly high-
                                                            er than three.
   11
     Ponter’s exposition of the law on this point is
correct: “[I]t is not an unfair immigration-related            13
                                                                    Although the petroleum engineering
employment practice for a person or other entity to         department had only one non-minority member,
prefer to hire, recruit or refer an individual who is       that professor consistently received ratings of four.
a citizen or national of the United States over
                                                               14
another individual who is an alien if the two                    It is undisputed that Hayatavoudi received
individuals are equally qualified.” 8 U.S.C. §              consistently high ratings from Reike in his teaching
1324b(a)(4).                                                evaluations.

                                                        6
and he made numerous complaints to                     pretext.
University administrat ion about the
evaluations; there is, however, no evidence in            Hayatavoudi next takes issue with what he
the record that those complaints alleged any           terms the “revocation” of his endowed
racial, ethnic, or religious motivation for the        professorship. Hayatavoudi contends that the
evaluations. Moreover, the record reflects that        revocation is the result of discrimination. The
Hayatavoudi failed to take advantage of                University admits that Hayatavoudi lost the
invitations to discuss his evaluations with the        professorship but contends that the
University administration.                             professorship is awarded on renewable three-
                                                       year terms. Because Hayatavoudi failed to re-
   Regarding the substance of the                      apply for the professorship, it expired.
evaluationsSSthat he failed to meet standards
for scholarly productionSSHayatavoudi argues               Hayatavoudi does not dispute that he failed
that he has produced fifteen publications, one         to reapply for the professorship but seems to
patent, and four pending patents. In his               contend that he did not need to reapply. Not-
deposition, however, he could point to only            ably, he has not produced any evidence that
one publication, four abstracts, and no                the expiration of his professorship was related
proposals during the first eight months of 1998        to racial, ethnic, or religious animus or that his
and two or three abstracts, resulting in two           failure to reapply is merely pretext for
publications, during 1997. One of the 1997             discrimination.
publications discussed his sole patent, which
appears to cover an invention made during the              Hayatavoudi also complains about a
course of an independent contract with an              research stipend that was revoked when his
outside company, not within the scope of his           research was not approved. Although he
employment at the University.                          alleges that the research was pre-approved and
                                                       that the disapproval was therefore improper,
   Although Hayatavoudi remembers                      he provides no evidence supporting the
publishing something in 1996, he cannot                allegation. Such a bare allegation is not
remember the substance of that article. Reike          probative with respect to the issue of whether
stated, in his deposition, that he instructed          the stipend revocation was motivated by
Hayatavoudi to produce at least one research           discrimination. Neither the expiration of
proposal per semester and that Hayatavoudi             Hayatavoudi’s professorship nor the
had failed to comply with that instruction;            revocation of his research stipend evidences
Hayatavoudi does not dispute this contention.          any racial, ethnic, or religious animus.
To summarize, other than a vague statement
regarding the number of publications he has                Hayatavoudi alleges that in an attempt to
produced throughout his career, Hayatavoudi            force him to resign, the University subjected
can point to no evidence showing that his              him to “harsher working conditions” than
production deserves a rating higher than four.         those faced by other faculty members. The
On this record, there is nothing to show that          only support we can find in the record for this
the University’s justification for Hayatavoudi's       allegation is the assertion in his affidavit that
low evaluationsSSthat he failed to produce             “[h]e was never provided a safe environment
enough publications or proposalsSSis mere              to teach [sic] after his injury and did have to


                                                   7
teach in his dormitory for a period of time.”15              “supporting” allegations, we now turn to the
                                                             allegations that directly undergird his hostile
                                                             work environment claim. The first of those al-
   The record reflects that Hayatavoudi was                  legations is the “Jewish song.” We need not
told repeatedly that he was not allowed to                   decide the perverse issue of whether the mere
teach from his dormitory room because it was                 singing of a Jewish song around a Moslem
against University policy, yet he continued the              constitutes religious harassment, because Hay-
practice. Other than his testimony that his                  atavoudi’s unsupported allegation cannot form
back injury and urinary tract surgery rendered               the basis for relief.
him unable to teach in a classroom, Haya-
tavoudi fails to support, with facts in the rec-                 Nowhere in the record do we find support
ord, his allegation of unsafe environment.                   for the allegation; in fact, during his
More importantly, he fails to establish any con-             deposition, Hayatavoudi could not even state
nection between his allegations and any racial,              with any degree of specificity when the event
ethnic, or religious animus. As we have said,                occurred or who may have witnessed it.
unsupported allegations are not probative                    Likewise, accepting as true Hayatavoudi’s
evidence of hostile work environment.                        allegation that Reike told him that the Saudis
                                                             were “getting rid of their amadies,” we fail to
   Finally, Hayatavoudi complains that he was                see how the recounting of an observed
“subjected to continuous defamatory remarks                  phenomenon, without more, can possibly be
to his peers and students by Dean Ponter and                 considered harassing conduct. We therefore
Dr. Herman Reike, such as stating ‘you are no                cannot conclude that either of these events is
research professor’ and ‘your work is no                     probative of the ultimate fact of racial, ethnic,
good.’” Hayatavoudi has failed, however, to                  or religious harassment.
produce the testimony of any peers or students
supporting these allegations.                                   The events that occurred on and after
                                                             March 5, 1996, form the primary basis for
    Once again, unsupported allegations                      Hayatavoudi’s hostile work environment
provide no evidence of any racial, ethnic, or                claim.16 In evaluating whether these events
religious animus on the part of Reike or Pon-                constitute “discriminatory conduct [that] was
ter. Viewing the evidence in the light most                  severe or pervasive enough to create an
favorable to Hayatavoudi, we cannot conclude
that any of the actions of which Hayatavoudi
                                                                16
complains provide evidence that he was                              Hayatavoudi also asks us to consider, in
subjected to discrimination or a hostile work                evaluating his hostile work environment claim, the
environment.                                                 “Ayatollah Assodollah” comment and the con-
                                                             frontation between himself and Farshad. Those
                                                             events occurred in 1982, and Hayatavoudi cannot
                   B.                                        show that any discriminatory conduct has occurred
   Having disposed of all of Hayatavoudi’s                   in the intervening period. Moreover, Farshad, the
                                                             antagonist in each of those events, no longer works
                                                             in the petroleum engineering department. On these
   15
      Because neither the pleadings nor Hayatavou-           facts, we cannot conclude that either event is
di’s brief describes the harsh conditions, we are left       probative of pervasive racial, ethnic, or religious
to speculate as to what he may have been referring.          hostility within title VII’s limitation period.

                                                         8
objectively hostile or abusive work                    basis for a Title VII claim.
environment,” Walker, 214 F.3d at 625 (citing
Harris v. Forklift Systems, Inc., 510 U.S. 17,             Assuming, arguendo, that Reike’s “dog in
22 (1993)), we must be mindful that “Title             the desert” comment was motivated by racial
VII is not a general civility code for the             animus,17 that comment alone does not rise to
American workplace . . . .” Indest v. Freeman          a level sufficiently severe to support a title VII
Decorating, Inc., 164 F.3d 258, 263 (5th Cir.          claim. We have stated that “mere utterance of
1999) (single-judge opinion) (citing Oncale v.         an ethnic or racial epithet which engenders
Sundowner Offshore Servs., Inc., 523 U.S. 75,          offensive feelings in an employee” does not
81 (1998)). Indeed, “conduct must be extreme           constitute actionable harassment under title
to amount to a change in the terms and                 VII. Rogers v. EEOC, 454 F.2d 234 (5th Cir.
conditions of employment . . . .” Faragher,            1971), quoted in Faragher, 524 U.S. at 787.
524 U.S. at 788. The proper title VII analysis
“will filter out complaints attacking the                 Coupled with the physical “bump,”
ordinary tribulations of the workplace, such as        however, Reike’s comment becomes a closer
the sporadic use of abusive language, gender-          call.18 Nonetheless, in looking at “all the
related jokes, and occasional teasing.” Id. (in-       circumstances,” as required by Faragher, id.,
ternal quotation marks omitted) (discussing, in        the altercation did not constitute harassment
the context of a sexual harassment suit, the           severe enough to alter the conditions of em-
“demanding” standard a court must use to               ployment. There appear to have been no neg-
properly judge hostility).                             ative ramifications resulting from the incident;
                                                       indeed, Hayatavoudi concedes that the
    Having decided that neither the University’s       atmosphere in the department has been
employment decisions nor the two prior                 relatively placid since then.19 In summary, a
interactions between Reike and Hayatavoudi
provide probative evidence with respect to the
ultimate issue in this caseSSwhether racial,              17
                                                             This is not to say that such an assumption is
ethnic, or religious animus contributed to the         dictated by the facts of this case. Indeed, it seems
admittedly hostile atmosphere in the petroleum         far more plausible to conclude that Reike, upset
engineering departmentSSwe now evaluate the            over the faculty’s interruption of the department
March 1996 altercation.          Viewed most           meeting, simply confronted Hayatavoudi, whom
favorably to Hayatavoudi, that incident                Reike (correctly or incorrectly) assumed to be the
consists of the following: (1) Reike’s “dog in         leader of the mutiny, with an allegory he had
the desert” comment to Hayatavoudi; (2) the            learned during his extensive travels to Moslem
chest “butting” between Reike and Hayatavou-           countries.
di; (3) Reike’s “idiot” insult; and (4) Reike’s
                                                          18
allegation that Hayatavoudi’s wastefulness                   As we note supra, one of the factors to
amounts to thievery. Because all the events            consider in evaluating discriminatory conduct is
                                                       “whether it is physically threatening or humiliating,
occurred during one altercation, the allegedly
                                                       or a mere offensive utterance . . . .” Faragher, 524
discriminatory conduct plainly was not
                                                       U.S. at 787-88.
pervasive. The sole remaining issue, therefore,
is whether any of the eventsSSor their                    19
                                                            In fact, Marota and Ponter testified that Reike
confluenceSSwas severe enough to form a                was informally reprimanded after the incident, and
                                                                                              (continued...)

                                                   9
primarily verbal altercation, during which                  With respect to the strained relationship
nothing more physically threatening than chest           between Reike and Hayatavoudi, the only al-
“butting” occurred, is not sufficiently severe to        legation even remotely indicative of racial
justify relief under title VII.                          animus is the altercation in March 1996. That
                                                         event cannot be described as severe enough to
    The fact that Reike called Hayatavoudi an            alter Hayatavoudi’s conditions of employment,
idiot during the altercation does nothing to             however, and therefore cannot on its own
alter our analysis. During a heated exchange,            support a title VII claim.
it is not unusual for combatants to exchange
such unpleasantries; that comment utterly fails              The district court aptly summed up this
to provide any probative evidence of racial              case when, in its oral ruling granting summary
animus. Likewise, Reike’s assertion that Hay-            judgment, it stated that “[t]hese two guys just
atavoudi’s wastefulness is tantamount to thiev-          didn’t get along” but that “I don’t think . . . a
ery is nothing more than an angry statement              jury could find that it had anything to do with
made during an altercation; it displays no racial        race, religion, or national origin.” Hayatavou-
animus.20                                                di has failed to establish a material issue of fact
                                                         with respect to each of the elements of his
                        V.                               prima facie claim. In particular, he cannot es-
    Without a doubt, the environment in the              tablish a fact issue with respect to whether the
petroleum engineering department was far                 University’s conduct was severe or pervasive
from harmonious. To the extent that the strife           enough to alter the conditions of his
in that department exceeded the infighting typ-          employment. Viewing all the supportable
ical of academic settings, however, we cannot            allegations in the light most favorable to
conclude that racial animus caused the                   Hayatavoudi, we conclude that the district
aberration. With respect to each of the                  court properly granted summary judgment.
employment actions Hayatavoudi mentions,
the University has produced legitimate, non-                AFFIRMED.
discriminatory justifications to counter every
colorable allegation. Even after extensive
discovery, Hayatavoudi cannot show that any
of the asserted justifications is pretext.



   19
    (...continued)
Hayatavoudi concedes that there have been no
other incidents since the March 1996 incident and
speculates that “somebody may have talked to
[Reike].”
   20
     Moreover, Reike contendsSSand Hayatavoudi
does not disputeSSthat Reike’s statement resulted
from a conversation with other faculty members in
which they described Hayatavoudi's purported
wastefulness.

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