     Case: 11-10518   Document: 00511902256   Page: 1   Date Filed: 06/27/2012




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

                                                                  FILED
                                                                 June 27, 2012
                                No. 11-10518
                              Summary Calendar                   Lyle W. Cayce
                                                                      Clerk

NACHIAPPAN SUBBIAH MUTHUKUMAR,

                                          Plaintiff-Appellant

v.

THE UNIVERSITY OF TEXAS AT DALLAS,

                                          Defendant-Appellee

_____________________________________

N.S. MUTHUKUMAR,

                                          Plaintiff-Appellant

v.

THE UNIVERSITY OF TEXAS AT DALLAS,

                                          Defendant-Appellee


                  Appeal from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:10-CV-115


Before JONES, Chief Judge, and BENAVIDES and GRAVES, Circuit Judges.
   Case: 11-10518       Document: 00511902256         Page: 2     Date Filed: 06/27/2012

                                       No. 11-10518

PER CURIAM:*
       Nachiappan Subbiah Muthukumar appeals the district court’s dismissal
of his Title VII, Title VI, state-law tort, contractual, and constitutional claims
arising from his removal from a graduate program at the University of Texas at
Dallas (“UTD”). After affording liberal opportunity to amend, the district court
concluded that Muthukumar’s claims were time-barred, unexhausted, failed to
specifically allege discriminatory practices, or were barred by sovereign
immunity. We add only a few summary comments to the district court’s careful
decision and AFFIRM.
       As Muthukumar appeals a motion to dismiss, we accept his factual
allegations as true. Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en
banc). Muthukumar was a graduate student and teaching assistant in UTD’s
International Business program. He took a mandatory comprehensive exam
approximately thirty months into the program.                      After UTD informed
Muthukumar that he failed the exam, Muthukumar insisted on seeing his
grades on the exam, which several professors withheld.
       In response, Muthukumar initiated an internal grievance proceeding
within the university. UTD eventually revealed Muthukumar’s results on the
exam, but he was required to transfer out of the program (and into the School
of Economic, Political, and Policy Sciences) because of his failure. Muthukumar
alleges his professors responded in the months that followed by cutting his
funding as a teaching assistant, denying him a new teaching assistant position,
denying him professional recommendations, and, ultimately, by threatening him
with expulsion in November 2008.
       Muthukumar filed an Intake Questionnaire with the EEOC on August 24,
2009, alleging UTD discriminated against him in his capacity as an employee.


       *
         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.

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                                  No. 11-10518

He listed himself as a “student/TA-Instructor” as his job title, both at the point
he was hired and when he claimed he was discriminated against. He further
recounted on the intake form that from January 2005 to the then-present date
the faculty “refused to speak with” him and “refused to reveal” his grades. He
also listed that, starting in January 2006, his professors “took away [his] paper
and abused [their] authority to harm [his] career.” He noted on the intake form
that he wished to file a charge of discrimination.
      Muthukumar brought official employment discrimination charges under
Titles VI and VII on November 4, 2009. He listed the earliest date of alleged
discrimination as June 1, 2007, lasting through the threatened expulsion on
November 10, 2008. As he recounted on his charge, UTD initially informed him
of his failure in June 2007, he filed a grievance in September 2007, his salary
was reinstated (and thus impliedly cut before) February 2008, and UTD
threatened to expel him in November 2008. The EEOC closed his file as
untimely.
      When Muthukumar filed his federal suit in January 2010, the district
court consolidated it with a similar case removed from state court. He sought
and obtained leave to amend his complaint thereafter. UTD moved to dismiss
all of Muthukumar’s claims in December 2010; the district court granted UTD’s
motion, but gave Muthukumar “one final opportunity to state valid claims upon
which relief can be granted.”      The court directed Muthukumar to avoid
incorporating prior complaints by reference and explained in its order granting
UTD’s motion why each of Muthukumar’s claims were dismissed.
      Muthukumar filed a Second Amended Complaint in January 2011, largely
restating his dismissed complaint, but adding constitutional claims as well.
UTD re-urged its motion to dismiss each of Muthukumar’s claims. The district
court granted the motion, concluding that: (1) Muthukumar’s Intake
Questionnaire constituted an employment discrimination charge, tolling the 300
day requirement under Title VII, but that Muthukumar failed to exhaust his

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sole timely allegation; (2) Muthukumar failed to allege facts demonstrating
discriminatory intent behind specific acts for his Title VI claim; and (3) sovereign
immunity barred Muthukumar’s state-law tort, contract, and constitutional
claims.
      We review motions to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6) de novo. City of Clinton, Ark. v. Pilgrim’s Pride
Corp., 632 F.3d 148, 152 (5th Cir. 2010). We review sovereign immunity
objections to jurisdiction de novo under Rule 12(b)(1). Lane v. Halliburton,
529 F.3d 548, 557 (5th Cir. 2008). Muthukumar raises a variety of meritless
challenges against each of the district court’s rulings — thirteen solely against
its conclusion that allegedly discriminatory acts before October 28, 2008 are
time-barred. We discuss only those raising some legal argument, and group
these together by claim.
      The timbre of Muthukumar’s sole legal argument against the applicability
of the Title VII time-bar is that UTD’s actions constituted a “series of
violation[s]” (or continuing violation) for which prior, time-barred conduct may
be considered under Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14,
122 S. Ct. 2061, 2072-73 (2002).       This misunderstands Morgan.         Morgan
expressly enforced the 300-day time-bar for Title VII discrimination claims
against “[d]iscrete acts such as termination, failure to promote, denial of
transfer, or refusal to hire” because they are “easy to identify” and each
“constitutes a separate actionable ‘unlawful employment practice.’” Id. at 114,
2073. Muthukumar’s alleged harms fall in this category. Each discrete action
accrued, and thus commenced his obligation to file no later than 300 days
following the date it occurred. Only one, his threatened removal from the
university as a student, is arguably within the 300-day statutory period if we
construe the Intake Questionnaire, solely for the sake of this argument, as his
charge before the EEOC, thus marking the 300-day window. Nevertheless, this



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allegation fails to establish a Title VII claim, and in any event was not made
before the EEOC in the Intake Questionnaire. The district court did not err.
      Muthukumar’s Title VI claim fares no better. The district court correctly
noted that Muthukumar expressed a generalized accusation of discrimination
based on national origin and that he enumerated eight harms which he
suspected derived from his national origin, but he failed to articulate anywhere
in his Title VI claim a statement that, if true, could prove discriminatory intent.
Stating that he was forbidden from retaking an exam “against the university’s
policy and for discriminatory reasons” is not enough, see Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937 (2009), nor is his claim that a professor “harmed
my promising career” “in violation of Title VI.” Id. Likewise, a conclusional
statement that “the [university’s] threats . . .[are] for retaliatory reasons [rather
than] genuine disciplinary reasons” will not suffice. Id. These are factually
barren and facially insufficient to state a claim of discrimination based on
national origin.
      Finally, Muthukumar asserts that UTD, the sole defendant, is not entitled
to sovereign immunity. Muthukumar is mistaken. UTD is a state institution
entitled to sovereign immunity under state law. Cnty. of Cameron v. Brown,
80 S.W. 3d 549, 554 (Tex. 2002). Sovereign immunity is a jurisdictional bar.
United States v. Tex. Tech Univ., 171 F.3d 279, 285 (5th Cir. 1999). As the party
invoking the court’s jurisdiction, Muthukumar bore the obligation of
demonstrating a plausible basis for the court to adjudicate his claims — i.e. a
waiver of sovereign immunity. In re Eckstein Marine Serv., L.L.C., 672 F.3d 310,
314 (5th Cir. 2012). He has articulated no plausible basis for a waiver of
immunity as to his claims, and this court may not proceed without one.
Additionally, Muthukumar’s constitutional claims are barred by Eleventh
Amendment immunity. The district court correctly dismissed Muthukumar’s
remaining claims.
                                                                      AFFIRMED.

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