                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3377
                                       ___________

                                         LEI KE,
                                              Appellant

                                             v.

                         DREXEL UNIVERSITY; JOHN FRY;
                       RICHARD HOMAN; SAMUEL PARRISH;
                        AMY FUCHS; JENNIFER HAMILTON;
                                ANTHONY SAHAR
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2-11-cv-06708)
                       District Judge: Honorable Joel H. Slomsky
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 16, 2016
             Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges

                             (Opinion filed: March 22, 2016)
                                     ___________

                                        OPINION*
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         Lei Ke appeals from an order of the United States District Court for the Eastern

District of Pennsylvania, which denied his summary judgment motion and granted the

Defendants’ cross-motion for summary judgment. We will affirm the District Court’s

judgment.

         Writing primarily for the parties who are familiar with the extensive record in this

case, we review only those facts that are especially pertinent to our analysis. Ke, who

was a medical student at Drexel University College of Medicine (“DUCOM”), was

dismissed from DUCOM after his second year for poor academic performance,1 but was

conditionally readmitted on appeal to the Dean. One of the readmission conditions was

that “[a]ny grade below Satisfactory will be considered grounds for dismissal from the

College of Medicine.” When Ke retook the four classes he had failed during his second

year, he received an “MU” in one of them. Nevertheless, he was not dismissed, but was

allowed to remediate the grade by passing the National Board of Medical Examiners

(“NBME”) Microbiology Subject Exam.2

         Ke then began a Family Medicine internship with a practice owned by Dr.

Anthony Sahar. Ke ultimately received a “U” for the clerkship. DUCOM’s Clinical

Promotions Committee met to determine whether the “U” constituted grounds to dismiss

Ke. The Committee decided that because Ke had received positive mid-rotation feedback


1
 Ke received one “Marginal Unsatisfactory” (“MU”), and one “Unsatisfactory” (“U”)
during his first year, and four “U”s in his second year.
2
    These required subject matter exams are referred to as “shelf exams.”
                                               2
from another doctor at Sahar’s practice, leniency was warranted. The Committee allowed

Ke to remain enrolled, but stipulated that his remaining clerkships would be in the

Philadelphia area to allow closer supervision, that he would be required to repeat the

Family Medicine Clerkship, and that “[t]he receipt of any additional grade of less than

Satisfactory (including Unsatisfactory or Marginal Unsatisfactory) will be considered

grounds for dismissal from the College of Medicine.”

         Ke then began an OB/GYN clinical rotation. He passed the clinical portion of the

rotation, but failed the NBME shelf exam and thus received an “MU” for the clerkship.

The Promotions Committee voted to dismiss Ke, and his appeals were unsuccessful.

         Ke filed a complaint in the District Court against Drexel University and several

individual defendants, raising a number of causes of action, based on his belief that he

was dismissed from DUCOM because of his race or ethnicity (Ke is Chinese). Following

discovery and protracted litigation, including motions to amend the complaint and a

motion to dismiss the complaint in part, seven claims remained at the time of summary

judgment:

         (1) Count I—Intentional Discrimination in violation of 42 U.S.C. § 1981
         against all Defendants; (2) Count II—Willful Retaliation in violation of 42
         U.S.C. § 1981 against all Defendants; (3) Count III—Hostile Educational
         Environment in violation of 42 U.S.C. § 1981 against Sahar, Parrish, and
         Drexel University; (4) Count IV—Intentional Discrimination in violation of
         Title VI of the Civil Rights Act, 42 U.S.C. § 2000d, against Drexel
         University; (5) Count V—Willful Retaliation in violation of Title VI of the
         Civil Rights Act, 42 U.S.C. § 2000d against Drexel University;3 (6) Count


3
    Counts IV and V were brought only against Drexel, which receives federal funding.
                                              3
       VI—Conspiracy in violation of 42 U.S.C. § 1985 against Sahar, Parrish,
       and Hamilton; and (7) Count VII—Racially Motivated Breach of Contract
       in violation of 42 U.S.C. § 1981(b) against all Defendants.

Dist. Ct. Mem., Dkt. #683 at 16-17. The District Court denied Ke’s Motion for Summary

Judgment as to all seven counts, and granted the Defendants’ Cross-Motion for Summary

Judgment as to all counts. Ke appealed.

                     I.     Scope of Appeal and Standard of Review

       Ke’s notice of appeal references only the District Court’s summary judgment

order, but two weeks after his opening brief was filed, he filed a “Motion to Appeal the

District Court’s Prior Orders.” As Appellees note in response to the motion, Federal Rule

of Appellate Procedure 3(c) requires an Appellant to “designate the judgment, order, or

part thereof being appealed.” In his reply, Ke correctly counters that this Court has “a

policy of liberal construction of notices of appeal,” particularly where the Appellant is

proceeding pro se. Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 202 n.1 (3d Cir.

2001); see also Gov’t of the Virgin Islands v. Mills, 634 F.3d 746, 751 (3d Cir. 2011).

But Ke also correctly cites United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2015), for

the proposition that an argument not raised in an opening brief is waived. See also Bailey

v. United Airlines, 279 F.3d 194, 204 (3d Cir. 2002) (issue is waived on appeal when




See 42 U.S.C. § 2000d (“No person in the United States shall on the ground of race,
color, or national origin, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving Federal financial
assistance.”).

                                             4
identified in the statement of issues but not argued in the brief).4 Even if we were to

construe Ke’s notice of appeal as challenging the District Court’s prior orders, since he

did not challenge those orders in his opening brief, we will not address them any further.5

       We review the District Court’s order granting summary judgment de novo and

review the facts in the light most favorable to the nonmoving party. See Burns v. Pa.

Dep’t of Corr., 642 F.3d 163, 170 (3d Cir. 2011). We will affirm summary judgment if

“there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a).

                                     II.      The Merits

       A.     Section 1981 and Title VI Claims

       We agree with the District Court’s thorough analysis of these claims. Ke has not

raised a genuine issue of material fact with respect to intentional discrimination.6 While


4
  Ke argues that he mentioned the prior orders in his “Concise Summary of the Case,”
which he indicates he filed pursuant to 3d Cir. LAR 33.3. That Rule does not apply to
pro se cases, but in any event, Ke has waived review of the prior orders by not discussing
them in his opening brief.
5
  We have considered whether “extraordinary circumstances” warrant our review of the
earlier orders, despite the waiver. See United States v. Albertson, 645 F.3d 191, 195 (3d
Cir. 2011). We do not find any such circumstances here, and we find that Ke’s attempt to
raise the issues by way of motion is an attempt to circumvent the Clerk’s order that his
brief not exceed 16,500 words. Ke’s “Motion to Appeal the District Court’s Prior
Orders” is thus denied. We note, in any event, that we find no reversible error in the
District Court’s prior orders.
6
  Ke’s statement that Defendants expressed in the District Court that “Caucasian
[students] are smarter than minority students” is frivolous and fallacious. What
Defendants said was that they “do not contend that Caucasians are smarter than minority
                                               5
it is undisputed that Ke belongs to a racial minority, no direct or indirect evidence

suggests that he was dismissed from DUCOM because of his race. The only evidence

that could be construed as evincing racial animus are comments that were allegedly made

by Dr. Sahar during Ke’s clinical rotation.7 But Dr. Sahar was not involved in making

the decision to dismiss Ke, and the “U” that Dr. Sahar gave Ke for his clerkship was not a

factor in Ke’s dismissal. See Dkt. #634-17 (Exh. M); 634-19 (Exh. O). See Ezold v.

Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992) (“Stray remarks by

non-decisionmakers or by decisionmakers unrelated to the decision process are rarely

given great weight, particularly if they were made temporally remote from the date of

decision.”).

       We have “recognized that individuals who violate the law based on discriminatory

motives sometimes do not leave a trail of direct evidence, but instead ‘cover their tracks’

by providing alternate explanations for their actions, [and] we have [thus] found that a

plaintiff may establish a prima facie factual foundation of discrimination by drawing

reasonable inferences from certain objective facts that are generally not in dispute.”

Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 275 (3d Cir. 2014), cert. denied sub


students.” Dkt. #647-1 at 14, ¶ 39 (emphasis added).
7
  Dr. Sahar allegedly pressed Ke to determine where he was from, and when he learned
that Ke was from Communist China, he said he did not like Communist China. He also
allegedly asked Ke if he ate American food or “gook food,” and stated that Ke was “very
big and tall for a Chinaman.” Ke was not able to depose Dr. Sahar, as he was sick with
cancer, and later died while the complaint was pending.

                                              6
nom. Allston v. Lower Merion Sch. Dist., 135 S. Ct. 1738 (2015). The District Court

painstakingly examined all of the evidence regarding students who received “U”s or

“MU”s, who did not pass shelf exams or clinical rotations, and who were allegedly

treated more favorably than Ke. The District Court, examining “all of the surrounding

facts and circumstances,” see id. at 276, found no evidence that would lead to an

inference that Ke was dismissed because of his race. See Dkt. #683 at 33-54. After

examining the record, we similarly find no such evidence.

       B.     Racially-motivated Breach of Contract

       As noted, we agree with the District Court that the record presents no evidence,

direct or circumstantial, of discrimination. Thus, Ke’s claims of a “racially-motivated

breach of contract,” and his claim that he endured a hostile education environment must

fail. As for the contract claim, Ke argues that the Student Handbook allowed him to

remediate a grade of “MU,” and thus he should not have been dismissed for the “MU” in

his OB/GYN clerkship. But Ke’s contract with DUCOM had been modified by the

conditions imposed by the Dean on his initial re-enrollment, and the conditions imposed

by the Promotion Committee after receiving a “U” in the Family Medicine clinical. Ke

accepted those conditions each time by re-enrolling or continuing his enrollment in

DUCOM. Thus, Ke was subject to the more stringent condition that an “MU” was

sufficient for his dismissal. And we do not find any evidence in the record that racial

animus, either direct or circumstantial, motivated the imposition of those conditions.


                                             7
         As for the hostile environment claim, we agree with the District Court that most of

the comments Ke referenced do not in any way suggest a discriminatory motive.8 And

the comments by Dr. Sahar, see supra note 7, were limited in scope, and were not

“sufficiently severe or pervasive to alter the conditions [of the clerkship] and create an

abusive working environment.” See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)

(analyzing a hostile work environment in the Title VII context).9

         C.     Retaliation Claim

         We agree with the District Court that Ke’s retaliation claims under Title VI and

§ 1981 fail because he did not allege that he engaged in protected activity. In other

words, Ke does not claim that he was retaliated against because he complained of racial

discrimination. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005)

(holding in Title IX context that “retaliation against individuals because they complain of

sex discrimination is intentional conduct that violates the clear terms of the statute”

(quotation marks omitted)). While protected activity “includes not only an employee’s

filing of formal charges of discrimination against an employer but also informal protests

of discriminatory employment practices, including making complaints to management,”

see Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015) (quotation marks


8
 For example, Ke complains that he was labeled as “awkward and immature,” “the
weirdest guy I’ve ever met,” and “introverted.” None of these phrases implies racial
animus.
9
    We further note that Dr. Sahar was not present for much of the clerkship.

                                              8
omitted), Ke pointed to no record evidence (aside from his own statements in his

memorandum in support of his summary judgment motion) that would indicate that he

complained to anyone at Drexel about racial discrimination. See Chavarriaga v. N.J.

Dep’t of Corr., 806 F.3d 210, 218 (3d Cir. 2015) (party opposing summary judgment

“must point to specific factual evidence showing that there is a genuine dispute on a

material issue requiring resolution at trial”). We thus need not discuss whether Ke met

the other requirements of a prima facie case of retaliation. See Moore v. City of

Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006) (setting forth elements of retaliation

claim in Title VII context).

         D.     Conspiracy Under 42 U.S.C. § 1985(3)

         “[B]ecause § 1985(3) requires the intent to deprive of equal protection, or equal

privileges and immunities, a claimant must allege some racial, or perhaps otherwise

class-based, invidiously discriminatory animus behind the conspirators’ action in order to

state a claim.” Farber v. City of Paterson, 440 F.3d 131, 135 (3d Cir. 2006). As we have

noted above, there simply is no record evidence here of discriminatory animus. 10 Thus,

Ke’s conspiracy claim fails.11


10
   Ke argues for the first time on appeal that his right to interstate travel was restricted.
As Appellees correctly note, we generally do not address arguments that were not raised
in the District Court. See Ziccardi v. City of Philadelphia, 288 F.3d 57, 65 (3d Cir.
2002). And we agree with Appellees, in any event, that the requirement that Ke complete
his clerkships in Philadelphia did not in any unconstitutional way restrict his right to
travel.
11
     Ke’s motion to expand the record is denied. Although we may, in limited
                                               9
      For the foregoing reasons, we will affirm the District Court’s judgment.12




circumstances, have the equitable power to allow a party to supplement the record on
appeal, see In re Capital Cities/ABC, Inc.’s Application for Access to Sealed Transcripts,
913 F.2d 89, 96 (3d Cir. 1990), equity would not support supplementing the record here,
as Ke has not explained his failure to introduce the documents in the District Court.
Further, because Ke has failed to show racial animus, the three pages, which relate to
Ke’s argument regarding whether the actors could form a conspiracy, do not impact our
decision in any way.
12
  Ke’s motion to disqualify Judge Slomsky is denied as moot. We commend Judge
Slomsky for his patience and diligence in guiding this case to resolution. Appellees’
cross-motion for sanctions and Ke’s cross-motion for sanctions are denied.
                                            10
