     Case: 11-10517     Document: 00511870271         Page: 1     Date Filed: 05/30/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           May 30, 2012

                                     No. 11-10517                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



NACHIAPPAN SUBBIAH MUTHUKUMAR,

                                                  Plaintiff-Appellant
v.

L. DOUGLAS KIEL,

                                                  Defendant-Appellee



                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CV-1131



Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        A former doctoral student at the University of Texas at Dallas alleged that
his dissertation advisor discriminated against him due to his national origin,
breached an implied contract, and committed various state-law torts. The
district court dismissed the complaint for failure to state a claim. We AFFIRM.




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-10517       Document: 00511870271         Page: 2     Date Filed: 05/30/2012



                                       No. 11-10517

                                     BACKGROUND
       Nachiappan Muthukumar was a student and teaching assistant at the
University of Texas at Dallas. In June 2007, he failed a comprehensive exam
given by the School of Management that was required for an International
Business degree. He filed several internal grievances against faculty professors
alleging they would not reveal his grades. He also transferred to the School of
Economics, Policy and Political Science in pursuit of a Public Affairs degree.
       In November 2008, Muthukumar filed a charge with the Equal
Employment Opportunity Commission. He later filed an array of pro se state
and federal lawsuits. In January 2010, he sued the University in the U.S.
District Court for the Northern District of Texas asserting several federal civil
rights claims. In March 2010, he filed two additional cases in Dallas County.
One was filed in the 14th Judicial District Court against the University,1 while
the case before us today was filed against Professor L. Douglas Kiel in the 162nd
Judicial District. Kiel removed the suit to federal court based on federal-
question jurisdiction. The court exercised supplemental jurisdiction over several
state claims. See 28 U.S.C. §§ 1331, 1367(a). Muthukumar alleged that Kiel
was his doctoral dissertation chair. In that capacity, Kiel allegedly obstructed
his progress by purposefully denying financial aid, preventing him from
gathering necessary data, and spreading rumors detrimental to his academic
and professional prospects.
       The district court denied Kiel’s first motion to dismiss, instead granting
Muthukumar leave to file an amended complaint. The amended complaint
relied on Section 1983 and also Title VI and Title VII of the Civil Rights Act of



       1
         The University removed the state case against it, and the Northern District
consolidated Muthukumar’s original federal action with it. That consolidated action was
dismissed for failure to state a claim and is subject to a separate appeal under docket number
11-10518.

                                              2
     Case: 11-10517    Document: 00511870271      Page: 3    Date Filed: 05/30/2012



                                     No. 11-10517

1964. 42 U.S.C. §§ 1983, 2000d, & 2000e. A breach of contract and several torts
under Texas law were also claimed. Kiel again filed a motion to dismiss, which
the district court granted as to all claims. Muthukumar timely appeals.
                                    DISCUSSION
        Our review of the district court’s dismissal for failure to state a claim is de
novo. Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795-96 (5th
Cir. 2011). In order to withstand a motion to dismiss, a “complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. at 796 (quotation marks and citation omitted). We
may affirm the judgment of the district court “on any grounds raised below and
supported by the record.” Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d
145, 148 (5th Cir. 2010).


I.      Federal Claims
        Kiel is not a proper defendant for either of the federal discrimination
claims. “[T]here is no individual liability for employees under Title VII.” Smith
v. Amedisys Inc., 298 F.3d 434, 448 (5th Cir. 2002); see also Ackel v. Nat’l
Commc’ns, Inc., 339 F.3d 376, 381 n.1 (5th Cir. 2003). The statute forbids
discrimination by an “employer,” a term defined as “a person engaged in an
industry affecting commerce who has fifteen or more employees.” 42 U.S.C. §§
2000e(b), 2000e-2. Professor Kiel was not the employer. This section also
references “any agent” of an employer, but that term merely incorporates the
principle of respondeat superior liability into Title VII. Amedisys, 298 F.3d at
448. There is caselaw suggesting that it may be proper to name a supervisor as
the defendant as the agent of the actual employer. See Grant v. Lone Star Co.,
21 F.3d 649, 652 (5th Cir. 1994). No individual liability by the agent results,
though. Id. at 652-53. The record indicates that Muthukumar has brought a
separate suit against the University. The amended complaint against Kiel in

                                           3
      Case: 11-10517   Document: 00511870271     Page: 4   Date Filed: 05/30/2012



                                    No. 11-10517

the present suit seeks to impose individual liability against him. Kiel was an
employee of the University and is not a Title VII employer. Thomas v. Choctaw
Mgmt./Servs. Enter., 313 F.3d 910, 911 (5th Cir. 2002).
         The Title VI claim similarly fails. As the district court recognized, that
provision outlaws discrimination “under any program or activity receiving
Federal financial assistance.” 42 U.S.C. § 2000d; see generally United States v.
Baylor Univ. Med. Ctr., 736 F.2d 1039 (5th Cir. 1984). We agree with the
Eleventh Circuit that Title VI permits suits only against public or private
entities receiving funds and not against individuals such as Kiel. Shotz v. City
of Plantation, Fla., 344 F.3d 1161, 1171 (11th Cir. 2003).
         Finally, the Section 1983 claim requires allegations that state actors
deprived a plaintiff of federal rights. Lauderdale v. Tex. Dep’t of Criminal
Justice, 512 F.3d 157, 165 (5th Cir. 2007). Muthukumar has not alleged a
violation of any constitutional provision, and the only federal statutory rights he
has invoked are Title VI and Title VII. The district court was right to dismiss
this claim.


II.      State Causes of Action
         Texas law sets out a specific scheme for plaintiffs to pursue tort claims
against the state and its employees under the Texas Tort Claims Act. See
Misson Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655-56 (Tex. 2008).
There is an “Election of Remedies” provision, under which the filing of a suit
“against a governmental unit constitutes an irrevocable election by the plaintiff
and immediately and forever bars any suit or recovery by the plaintiff against
any individual employee of the governmental unit regarding the same subject
matter.” Tex. Civ. Prac. & Rem. Code § 101.106(a); see Rodriguez v. Christus
Spohn Health Sys. Corp., 628 F.3d 731, 737-38 (5th Cir. 2010).



                                          4
   Case: 11-10517       Document: 00511870271          Page: 5     Date Filed: 05/30/2012



                                       No. 11-10517

       It is undisputed that before he sued Kiel in this action, Muthukumar filed
another action against the University initially asserting many of the same torts
as here. The district court compared this complaint with those lodged against
the University in state and federal court, and deemed them all as “arising out
of the same actions, transactions, or occurrences.” Dall. Cnty. Mental Health &
Mental Retardation v. Bossley, 968 S.W.2d 339, 344 (Tex. 1998) (quotation marks
anc citation omitted). We agree. Both actions pertain to the same time period
of his doctoral studies and allege misconduct by the University faculty. His
amended complaint in the other consolidated action also described Professor Kiel
as an individual important to the case. Muthukumar’s argument that he is not
proceeding under the Tort Claims Act and therefore did not trigger the election
of remedies provision, represents a misconception about the statutory scheme.
The “phrase ‘brought under the Tort Claims Act’ is merely shorthand for the fact
that the government may not be sued in tort unless a separate, viable tort fits
within the limited waiver provided by the Act.” Rodriguez, 628 F.3d at 736.
Therefore, it is proper to hold Muthukumar to his election for all of his tort
claims.2 See id. at 738.
       Finally, we consider the breach of contract claim. Texas recognizes that
circumstances can create a contractual relationship even absent a formal
document. See R.R. Mgmt. Co., v. CFS La. Midstream Co., 428 F.3d 214, 222
(5th Cir. 2005). In addition to proving the contract, a claim for breach requires:
(1) performance by the plaintiff, (2) a breach by the defendant, and (3) that
damages flow from the breach. See, e.g., Prime Prods., Inc. v. S.S.I. Plastics,
Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
Even after being granted leave to amend, Muthukumar made no assertions to
support the existence of a contract with Kiel, nor did he address the other

       2
         His claims are tortious interference with contract, intentional infliction of emotional
distress, defamation, breach of fiduciary duty, and what he denominated “contort.”

                                               5
   Case: 11-10517    Document: 00511870271       Page: 6   Date Filed: 05/30/2012



                                   No. 11-10517

elements of breach. The claim is a “formulaic recitation of the elements of [that]
cause of action,” which fails to satisfy Rule 8's pleading standard. Bell Atl. v.
Twombly, 550 U.S. 544, 555 (2007). Not even a pro se plaintiff may advance
beyond the pleading stage merely by averring he will “show the court and the
jury the presence of the elements of such a contract and its breach.” See Hale v.
King, 642 F.3d 492, 499 (5th Cir. 2011).
      Based on Muthukumar’s threadbare allegations we have no basis on which
to infer that it is plausible that Kiel is liable for breach of contract. Id.
      AFFIRMED.




                                         6
