        Case: 18-13326   Date Filed: 01/30/2019   Page: 1 of 10


                                                   [DO NOT PUBLISH]



         IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT
                   ________________________

                          No. 18-13326
                      Non-Argument Calendar
                    ________________________

              D.C. Docket No. 2:16-cv-00702-KS-DAB



SUCCESS JUMBO,
SAVIOR B. SAMUEL,
BRIAN BAKE,
AMIYENKUMO EMMANUEL,
RUTH OFUA,
ROSELINE ATUIN,
KEHINDE BATIFE,
JEFFREY OGBUDU,
IDOWU IJANBOH,
TAMARRAUBIBIBOGHA GUNUBOH,
EMMANUEL OPOKUMA,
DEMIAN UDAKA,
MATHIAS MUMBOH,
PHILIP MEZEH,
OBO SAKA,
THANKGOD HAROLD,
JAMES OGONIBA,
APIRI OBANABA,
STANLEY CHUKWUEMEKA,
VICTOR DIAMOND,
JIMMY IWEZU,
FAITH DOUTIMIWEI,
PROMISE OWEI,
MANFRED PEPPLE,
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DIFFA PREKEBINA,
EMMANUEL AZIBAKANYE,
DAUBOTEI UGOWONNI,
KELVIN AKONO,
DANIEL HAROLD,
IFEOMA OKORO,
OLUWABUKOLA JAYEOLA,
JUSTINA AMUSO,
VICTORIA NWIDUM,
LOLIA SOBEREKON,
TARIERE OKUBA,
GODSGIFT MOSES,
ALL PLAINTIFFS,

                                                   Plaintiffs-Appellants,

versus

ALABAMA STATE UNIVERSITY,
FEDERAL REPUBLIC OF NIGERIA,

                                                   Defendants-Appellees.

                            ________________________

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

                                  (January 30, 2019)

Before, ED CARNES, Chief Judge, MARCUS, and ROSENBAUM, Circuit
Judges.

PER CURIAM:

         A number of Nigerian students filed a complaint against Alabama State

University contending that it improperly withheld scholarship funds that the


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Federal Republic of Nigeria provided for them. The district court granted

summary judgment to the university. This is the students’ appeal.

                                          I.

      In April 2013 two university representatives, Stephen Havron and David

Iyegha, went to Nigeria to discuss the admission of Nigerian scholarship students.

Iyegha testified that they reached an oral agreement that the students would be

“treated as out-of-state students” and that “all charges would be set accordingly.”

The following month Nigeria sent a letter to the university confirming that it was

“providing full scholarship[s] (covering tuition fees, books, supplies, insurance,

room/boards, living expenses, and other incidentals)” for the students.

      After thirty-four Nigerian students matriculated, Nigeria wired scholarship

funds directly to the university, which placed the funds in a deferred revenue

account. The university then established individual accounts for each student. It

transferred funds from the deferred revenue account to individual student accounts

as each student registered for classes, purchased books, signed up for housing, and

incurred other expenses. University officials testified that these students were not

charged an amount for each of these expenses different from the amount that

would be charged to other non-Nigerian students.

      In April 2015 Iyegha wrote a letter to university president Gwendolyn Boyd

highlighting several concerns that the Nigerian students had raised. These


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concerns included the students being charged for meal plans they did not want,

forced to buy high-cost books through the campus bookstore, and being charged

for staying in dormitories during the semester and over breaks regardless of

whether they were actually residing in the dormitories during those times. Iyegha

also noted that funds left over in students’ individual accounts at the end of the

year had not been refunded to them, but had instead been used to defray the cost of

outstanding payments Nigeria still owed the university.

      In May 2015, after Boyd had failed to satisfy the students’ concerns, they

sent a letter to Nigerian officials. Shortly after, Nigeria sent a letter to Boyd asking

that “1. All credit balances for Tuition be carried over for each student and be used

as [an] initial deposit for the next semester[’s] fees. 2. All credits/balances on all

other line items should be refunded to each student.” Provost Leon Wilson

testified that at the time this letter was sent there were no funds to carry over to the

next semester or to refund to students because Nigeria was late in paying the

scholarship funds to the university. He also testified that he reached out to

Nigerian officials in an attempt to discuss the matter after receiving the letter, but

did not hear back. Nigerian officials eventually resolved the late payment, but did

not address the students’ complaints again.




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          In May 2016, after Nigerian students had filed a lawsuit demanding

reimbursement of scholarship funds, 1 Wilson wrote another letter to Nigerian

officials. He received a response asking him for an accounting of how much credit

Nigeria had on balance with the university and instructing him to “hold[] on to the

funds until Instructions are given on the process of refunds.” In July 2016 a

Nigerian delegation visited the university to resolve the matter. They agreed that

moving forward the university would collect only tuition and related fees from

Nigeria and other scholarship funds would be paid directly to students. The

university then disbursed scholarship funds that it received from Nigeria in 2016 to

the students, except for funds related to tuition. Nigeria still had a credit of

$201,358.90 after this distribution, and Wilson wrote a letter asking for

instructions on how to refund the residual funds to Nigeria. Nigerian officials

instructed Wilson to “suspend the process of remitting the residual funds . . .

pending the determination of the actual amount outstanding with your institution.”

          In August 2016 Nigerian students filed the present complaint against the

university seeking the refund of certain scholarship funds that the university

received from Nigeria from 2013 to 2015. The students brought various state law

claims and a claim of national origin discrimination under Title VI of the Civil

Rights Act of 1964. The university interpleaded the residual funds and remitted

          1
              This earlier suit was dismissed on jurisdictional grounds and is not at issue in this
appeal.
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them to the district court in September 2017. In July 2018 the district court

granted summary judgment to the university. The university told the court that the

residual funds in the court registry belonged to Nigeria, but after Nigeria failed to

advise the court about how to distribute the funds they were remitted back to the

university. Nigerian students then filed two successive motions to alter, vacate, or

amend the district court’s judgment, which were both denied. The students now

appeal, contending that the district court erred in granting summary judgment to

the university on their Title VI claim by applying the incorrect legal standard and

by failing to give appropriate weight to evidence of discrimination presented by the

students.

                                          II.

      The Nigerian students first contend that the district court erred in evaluating

their Title VI claim under the McDonnell Douglas framework rather than a

deliberate indifference standard. We note that several of our sister circuits have

applied the McDonnell Douglas framework to Title VI claims. See e.g., Rashdan

v. Geissberger, 764 F.3d 1179, 1182 (9th Cir. 2014) (“We now join the other

circuits in concluding that McDonnell Douglas also applies to Title VI disparate

treatment claims.”); Fuller v. Rayburn, 161 F.3d 516, 518 (8th Cir. 1998)

(analyzing a Title VI claim under McDonnell Douglas’ burden shifting

framework); Hankins v. Temple Univ. (Health Scis. Ctr.), 829 F.2d 437, 440 (3d


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Cir. 1987) (applying McDonnell Douglas to both Title VI and Title VII claims

“[b]ecause of the difficulty in acquiring direct evidence of . . . motivation in most

cases.”). And in any case, the Nigerian students have waived this argument

because they raised it for the first time on appeal and never objected to the

application of McDonnell Douglas in the district court despite ample opportunity

to do so. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th

Cir. 2004) (noting that we have “repeatedly held that an issue not raised in the

district court and raised for the first time in an appeal will not be considered by this

court”) (quotation marks omitted).


                                                III.

       The students also contend that the district court erred in excluding evidence,

apparently referring to the court’s statement in its summary judgment order that

characterized affidavits submitted by Nigerian students as “subjective beliefs.” 2

       We review de novo a district court’s decision to grant summary judgment,

drawing “all reasonable inferences in the light most favorable to the non-moving

party.” Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). Summary


       2
         Both parties incorrectly assert that the district court made an evidentiary ruling and that
we should review it for abuse of discretion. This appears to be based on the court’s
characterization of affidavits as expressions of “subjective beliefs.” But the district court did not
hold that these affidavits were inadmissible. It merely found that they were insufficient to
present a genuine issue of material fact for trial. So the de novo standard for reviewing a grant of
summary judgment applies.


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judgment may be granted only if “there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter of law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509–10 (1986)

(quotation marks omitted). A genuine issue of material fact exists when “the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Id. at 248, 106 S. Ct. at 2510.

      We evaluate the students’ Title VI claim under the McDonnell Douglas

framework, because the students did not object to its application in the district

court. Under that framework a plaintiff must first make out a prima facie case of

discrimination. Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1185

(11th Cir. 1984). If a plaintiff successfully sets out a prima facie case, the burden

shifts to the defendant to articulate “one or more legitimate non-discriminatory

reasons for its action. If it does so, the burden shifts back to the plaintiff to

produce evidence that the . . . proffered reasons are a pretext for discrimination.”

Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010)

(citation omitted).

      To show pretext a plaintiff must demonstrate “both that the reason was false,

and that discrimination was the real reason” motivating the action. St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993). So long as

a defendant does not act because of a discriminatory reason, relief will not be


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granted solely because a decision was made “for a good reason, a bad reason, a

reason based on erroneous facts, or for no reason at all.” Id. (quotation marks

omitted).

      The Nigerian students contend that the district court erred in ruling that they

could not make out a prima facie case of discrimination. They argue that the

court’s finding that the only evidence that they were treated differently than

similarly situated non-Nigerian students consisted of affidavits containing

“subjective beliefs” was reversible error. But our review is de novo, so whether or

not the district court erred in its analysis is irrelevant. Our inquiry is focused

instead on whether the Nigerian students produced evidence that could allow a

reasonable jury to rule in their favor. We conclude that they did not. Even if the

students could make out a prima facie case, the university has proffered a

nondiscriminatory reason for handling the scholarship funds in the manner that it

did and the students have not shown that this was pretext for discrimination.

      The university has shown through ample evidence in the record that it tried

repeatedly to contact Nigerian officials to discuss how to deal with scholarship

funds multiple times before 2016 to no avail. Once the university had the

opportunity to discuss the matter with Nigerian officials, it gave the students

scholarship funds unrelated to tuition that it had received from Nigeria in 2016 and

it stopped collecting such funds moving forward. The only evidence the students


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presented that indicates that the university mishandled scholarship funds from

2013 to 2015 are affidavits from the students themselves and from Iyegha. But

even if the facts alleged in those affidavits are true, the students must show more

than that the university mishandled funds for “a bad reason, a reason based on

erroneous facts, or for no reason at all.” Id. (quotation marks omitted). To show

pretext the students must also show that the university withheld the funds for a

discriminatory reason. They have not, so they have failed to show that there was a

genuine issue of material fact for trial.

      AFFIRMED.




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