     Case: 13-50068       Document: 00512282365         Page: 1     Date Filed: 06/20/2013




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

                                                                            FILED
                                                                           June 20, 2013

                                     No. 13-50068                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



SAURAV PATHRIA,

                                                  Plaintiff - Appellant
v.

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                               USDC 5:12-CV-388


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Saurav Pathria was a PhD candidate at The University of Texas Health
Science Center at San Antonio (UTHSCSA). In March 2012, after raising
complaints of alleged discrimination and harassment to the Dean of the
Graduate School of Biomedical Sciences, Pathria filed an EEOC complaint.
Subsequently Pathria brought Title VI and VII claims, and various state law
claims, against UTHSCSA. He amended his complaint four times before the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-50068

district court dismissed all of his claims except his claim for national origin
discrimination in violation of Title VI and his claim for breach of contract.
Pathria filed a fifth amended complaint as to these claims, which UTHSCSA
moved to dismiss. In January 2013, the district court granted UTHSCSA’s
motion to dismiss Pathria’s fifth amended complaint. As to Pathria’s Title VI
claim, the district court held that Pathria failed to state a claim, finding in
particular that he failed to plead facts that create a reasonable inference of
discriminatory intent. The district court further held that UTHSCSA had
sovereign immunity from Pathria’s breach of contract claim, and in the
alternative, that Pathria had failed to state a claim for which relief could be
granted. Pathria timely appealed.
       Though Pathria raises a host of arguments on appeal, the only issue
properly before us is whether his fifth amended complaint contains factual
allegations sufficient for his Title VI claim to survive a 12(b)(6) motion.1
       We review a dismissal under Rule 12(b)(6) de novo, accepting all well-
pleaded facts as true and viewing them in the light most favorable to the
plaintiff. See, e.g., Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.
2008). To survive a 12(b)(6) motion to dismiss, a plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the
pleaded factual content “allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Twombly, 550 U.S. at 556).



       1
        Pathria did not raise issues as to his breach-of-contract claim in his opening brief.
Thus, this claim is waived. See Tharling v. City of Port Lavaca, 329 F.3d 422, 430 (5th Cir.
2003). In addition, the district court dismissed Pathria’s Title VII and Texas Labor Code
claims in a ruling that Pathria did not appeal, and Pathria has failed to argue why these
claims should be reinstated. Accordingly, these claims are also waived. See id.

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                                  No. 13-50068

      To prevail on a claim for relief under Title VI, a private litigant must
prove: (1) that the defendant engaged in intentional discrimination based on
race, color, or national origin; and (2) that the defendant received federal
financial assistance. 42 U.S.C. § 2000d; see also Alexander v. Sandoval, 532 U.S.
275, 280 (2001) (acknowledging a private right of action under certain sections
of Title VI). Pathria’s subjective beliefs do not create an inference of intentional
discrimination. See, e.g., Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427
(5th Cir. 2000). Rather, for Pathria’s Title VI claim to survive the 12(b)(6)
motion, the facts Pathria alleged in his fifth amended complaint must allow us
reasonably to infer that the alleged discrimination was motivated by his national
origin. See Ricci v. DeStefano, 557 U.S. 557, 577 (2009). As discussed below,
Pathria alleged that the chairperson of his dissertation supervisory committee,
Dr. Philip Serwer, and the committee as a whole, intentionally discriminated
against him based on his national origin. Neither allegation has merit.
      Pathria’s main allegation is that Serwer used the fact that Pathria was
from India to coerce him into conducting additional laboratory work. Pathria
contends that Serwer leveraged Pathria’s nationality to force compliance with
his demands by threatening Pathria with an unsatisfactory grade that would
have resulted in the cancellation of his visa, and accordingly would have
required him to return to India. Yet, Pathria’s fifth amended complaint states
no factual allegations that, if true, would create a reasonable inference that
Serwer’s conduct was motivated by Pathria’s national origin. Serwer’s alleged
statement—that he “could get [Pathria’s] visa cancelled... and send [Pathria]
“back to India”—if construed to create an inference of discriminatory animus,
would suggest an animus based upon Pathria’s immigration status or citizenship
and visa vulnerability, not his national origin. See, e.g., Guimaraes v. SuperValu,
Inc., 674 F.3d 962, 973 (8th Cir. 2012). We have held that citizenship and
national origin should not be conflated, and that citizenship is not a protected

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category under Title VI. See Bennett v. Total Minatome Corp., 138 F.3d 1053,
1059-60 (5th Cir. 1998).2
       Pathria further alleges that his dissertation supervising committee
discriminated against him based on his national origin. However, he fails to
plead any facts suggesting that committee members treated him differently
based on his national origin. Pathria advances only his subjective belief that
committee members failed to exercise independent judgment when making their
decisions, deferring to Serwer’s wishes; this bare allegation does not meet the
Twombly standard. See Byers, 209 F.3d at 427.
       Because Pathria’s complaint lacks sufficient factual allegations to
demonstrate that Serwer or the dissertation committee discriminated against
Pathria based on his national origin, we AFFIRM the district court’s order
granting UTHSCSA’s motion to dismiss.




       2
         Although Pathria argues that Bennett does not apply because it involved the
application of a treaty, this argument fails, as Bennett’s distinction between citizenship and
national origin did not rely on the treaty’s existence.


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