IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 00-30389

Summary Calendar

_______________

ASODOLLAH HAYATAVOUDI,

Plaintiff-Appellant,

VERSUS

UNIVERSITY OF LOUISIANA SYSTEM BOARD OF TRUSTEES

AND

UNIVERSITY OF SOUTHWESTERN LOUISIANA,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Louisiana

(97-CV-1846)

_________________________

November 27, 2000

Before SMITH, BENAVIDES, and

DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Asodollah Hayatavoudi appeals a summary

judgment in favor of the University of Louisiana System Board of Trustees and the University of Southwestern Louisiana2

(collec

* 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.

*

(...continued)

R. 47.5.4.

2

 We take judicial notice that the University of

SouthwesternLouisiana has since changed its name

(continued...)
2

tively, the “University”) on his title VII claim

of employment discrimination. Because we

agree with the district court that Hayatavoudi

adduced insufficient evidence of discrimination

to allow a reasonable jury to find the University liable, we affirm.

I.

Hayatavoudi, an Iranian-American of the

Shiite Moslem faith, is a tenured professor in

the petroleumengineering department, headed

byHermanReike, who joined the University in

1994.3 Hayatavoudi has taught at the University since 1980, except for periods of time

he spent on sabbatical at Stanford University

and on leave because of an injury. With one

exception, however, the eventsrelevant to this

appeal occurred after 1992. 

Hayatavoudi alleges several adverse employment actions.4

 First, he complains that in

1994, his supervising dean, Anthony Ponter,

wrongfully denied him a promotion to department head in favor of a “white male who

was U.S. born.” Second, Hayatavoudi complains about unfavorable performance ratings

from supervisors, resulting in lost raises.

Third, he objects to the 1994 expiration of his

endowed professorship, the revocation of a

research stipend, and the alleged failure to pay

for consulting work. Fourth, he claims he was

subjected to “harsher working conditions” to

“discourage him from continuing in his position.” Fifth, he alleges that Ponter and Reike

“continuously [made] defamatory remarks”

about him to students and faculty. 

In addition to adverse actions, Hayatavoudi

alleges instances of racial harassment. The

first is a comment made by a colleagueSSwho

has since transferred from the petroleum engineering department to the chemical engineering departmentSSduring the Iran hostage

crisis of the early 1980’s, in which the colleague called Hayatavoudi “Ayatolla Asodollah.” Hayatavoudi also alleges that the same

colleague lunged at him during a 1982 meeting, calling him names and referring to him as

“dead meat.” 

Further, Hayatavoudi contends that

“toward the middle of the [spring] semester of

1995,” Reike sang a “Jewish song” in his

presence. Hayatavoudi also alleges that,

sometime “during the fall or spring of 1996,”

Reike told him that, while Reike had been in

Saudi Arabia, he had seen Saudis “getting rid

of their amadies.”5 

The primary basis for Hayatavoudi’s complaint, however, appears to be a March 5,

1996, altercation between himandReike stemming from a departmental meeting in which

Reike notified the faculty that it would not be

2

(...continued)

to the University of Louisiana at Lafayette.

3 We assumeSSwithout decidingSSthat Rieke’s

position as department head places him in a supervisory position over Hayatavoudi for purposes

of title VII analysis.

4 Because this appeal arises from a summary

judgment, we recount the facts in the light most

favorable to the non-movant, Hayatavoudi. See

Duffy v. Leading Edge Prods., Inc., 44 F.3d 308,

312 (5thCir. 1995). This does not mean, however,

that we must give credence to unsupported

allegations: “[C]onclusory allegations unsupported

by concrete and particular facts will not prevent an

award of summary judgment.” Id. (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247 (1986).

5 An “amady” appears to be a piece of religious

clothing in the Shiite religion. 
3

allowed to utilize the services of the

department secretary as much as in the past.

Upset, the faculty members walked out of the

meeting. 

Apparently feeling that Hayatavoudi had led

the uprising, Reike confronted him in the

hallway after the meeting. Reike, who is

white, told Hayatavoudi that he was like “the

dogsin the desert, howling asthe caravan goes

by,” which, according to Reike, is a reference

to an Arabic proverb. Reike also proclaimed

that Hayatavoudi had wasted departmental

assets and equated the waste with thievery.

The altercation escalated and ended with a

physicalconfrontation during which, according

to Hayatavoudi, Reike bumped him and called

him an idiot. Hayatavoudi then touched

Reike, at which point Reike told Hayatavoudi

that he had made a “fatal mistake.”6

II.

In October 1996, Hayatavoudi filed a

“charge questionnaire” with the Equal Employment OpportunityCommission(“EEOC”)

complaining of discrimination on the basis of

race, religion, nationality, age, and disability.

That charge questionnaire led to an EEOC

complaint in May 1997. The EEOC dismissed

the complaint in a right-to-sue letter a month

later.

Shortly thereafter, Hayatavoudi filed the

instant complaint alleging title VII claims on

theories of adverse employment action and

hostile work environment. After discovery,

the University moved for summary judgment,

which the district court granted after a hearing,

ruling that Hayatavoudi had produced no

evidence indicating that Reike’s evaluations

were mo tivated by impermissible

discrimination, that Hayatavoudi had not

produced sufficient evidence that the

admittedly hostile environment was the result

of discriminatory animus, and that all the other

complained-of events occurred more than 300

days before the filing ofthe EEOCcharges and

thus were prescribed under title VII. 

Hayatavoudi appeals the portion of the

summary judgment rationale that concludes

that he had produced insufficient evidence of

a hostile work environment. He concedes,

however, that his “individual claims of adverse

6The evidence conflictsregarding the substance

of the physical confrontation. Hayatavoudi

testified in his deposition that Reike “started coming at [Hayatavoudi] with his stomach in front and

started to touch [him],” at which point Hayatavoudi merely asked Reike to calm down. Then, according to Hayatavoudi, Reike proclaimed, “You

touched me, you made your fatal mistake.” Hayatavoudi maintained a calm demeanor throughout

the altercation. 

In contrast, Reike contends that he and Hayatavoudi began screaming at one another, with

Reike pointing his finger at Hayatavoudi's face. In

response, Hayatavoudi shoved Reike, at which

point Reike said, “You assaulted me” and told

Hayatavoudi he hadmade a fatalmistake, implying

that Hayatavoudi would be punished by the

University for the assault. Reike also contends that

he did not bump Hayatavoudi, but instead that

Hayatavoudi bumped into him. Reike merely

placed his own hands behind his back and “was

going to take the hit.” 

(continued...)

6

(...continued)

Viewing the factsmostfavorably to Hayatavoudi, Reike bumped into Hayatavoudi, causing the

physical confrontation. We find it troubling that,

while both parties agree that several observers

witnessed the confrontation, neither has produced

supporting testimony from any of these witnesses,

who could presumably confirm either

Hayatavoudi’s or Reike’s version of the facts.
4

employment actions are barred by prescription

or are independently insufficient to constitute

a claim for discrimination. . . . [He] does,

however, reference [those] claims . . . as

supporting evidence that he was subjected to

a hostile environment.”

III.

We review a summary judgment de novo,

applying the same standard as did that court.

See Waymire v. Harris County, 86 F.3d 424,

427 (5th Cir. 1996). To survive a motion for

summary judgment, the non-moving party

must present sufficient evidence to support the

elements of its prima facie case. See Celotex

Corp. v. Catrett, 477 U.S. 317, 321-23

(1986). “Conclusory allegations unsupported

by specific facts, however, will not prevent an

award of summary judgment; ‘the plaintiff

[can]not rest on his allegations . . . to get to a

jurywithout anysignificant probative evidence

tending to support the complaint.’” National

Ass’n of Gov. Employees v. City Pub. Serv.

Bd., 40 F.3d 698, 713 (5thCir. 1994) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986)) (modifications in original).

IV.

To survive summary judgment on a hostile

work environment claim, a plaintiff must establish an issue of fact with respect to each of

the elements: “(1)racially discriminatory intimidation, ridicule and insults that are; (2) sufficiently severe or pervasive that they;(3) alter

the conditions of employment; and (4) create

an abusive working environment.” Walker v.

Thompson, 214 F.3d 615, 625 (5th Cir. 2000)

(citing DeAngelis v. El Paso Mun. Police

Officers Ass’n, 51 F.3d 591, 594 (5th Cir.

1995)). To determine whether a work environment is impermissibly abusive, a court

must consider all aspects of the discriminatory

conduct, including “[its] frequency . . .; its

severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an

employee’s work performance.” Faragher v.

City of Boca Raton, 524 U.S. 775, 787-88

(1998) (internal quotation marks omitted).7

To violate title VII, discriminatory conduct

must be “so severe or pervasive as to alter the

conditions of [the victim’s] employment.” Id.

at 786 (internalquotationmarks omitted,modification in original). Moreover, “an employee’s subjective belief of discrimination,

however genuine, cannot be the basis of

judicial relief.” Vance v. Union Planters

Corp., 209 F.3d 438, 444 (5th Cir. 2000)

(internal quotation marks omitted). 

A.

Hayatavoudi acknowledgesthe infirmity of

any claims related to employment actions

taken more than 300 days before the filing of

his EEOC questionnaire.8 Nor does he

7 Although Faragher dealt specifically with

sexual harassment, the Court drew heavily from

precedent involving racial harassment, noting that,

“[a]lthough racial and sexual harassment will often

take different forms, and standards my [sic] not be

entirely interchangeable, we think there is good

sense in seeking generally to harmonize the

standards of what amounts to actionable

harassment.” Faragher, 524 U.S. at 786-87 &

n.1.

8 Title VII imposes time limits on plaintiffs

seeking to recover for discriminatory actions. See

42 U.S.C. § 2000e-5(e)(1). When a state or locality provides for an administrative mechanism to

address complaints, as is the case here, a title VII

plaintiff may not recover for discrimination or

harassment occurring more than 300 days before

the filing of an EEOC complaint. See id.; Hucka-

(continued...)
5

contend that the “continuing violation” theory

servesto insulate those claimsfrom the statute

of limitations.9 Instead, he argues that his employment history with the University serves as

evidence of the hostile nature of his

relationship with that employer. 

Although he cites no authority for his position, Hayatavoudi argues that, despite the absence of any allegation of a continuing

violation, he may use past events as evidence

of a hostile work environment when actual

recovery for those events would be barred by

limitations. Because we conclude that

Hayatavoudi has produced no evidence that

the past employment actions were motivated

by discriminatory animus and, thus, that they

are of no probative value in evaluating his

hostile work environment claim, we need not

decide whether they might properly be used as

evidence supporting a claim of current hostile

environment. 

In analyzing each of the alleged adverse

actions, we apply the framework established in

McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973),10 under which a plaintiff seeking

to survive summary judgment must establish a

prima facie case of discrimination. See Reeves

v. Sanderson Plumbing Prods., Inc., 120 S.

Ct. 2097, 2106 (2000). The defendant may

rebut the prima facie case by producing a

legitimate, non-discriminatory justification for

the employment action; upon such a showing,

the McDonnell Douglas framework

disappears, and the remaining issue is

“discrimination vel non.” Id. (internal

quotation marks omitted). 

To survive summary judgment, however,

the plaintiffmay stillshow that the defendant’s

proffered justification is mere pretext. See id.

A showing of pretext may, on its own, allow a

trier offact to infer discriminatorymotive. See

id. at 2108.

The first employment action Hayatavoudi

describesis Ponter’sfailure to consider himfor

appointment to department head. Hayatavoudi

cites Ponter’s deposition testimony that in

choosing a department head, Ponter preferred

8

(...continued)

bay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998).

Because neither party addresses the issue of

whether the filing of a “charge questionnaire” with

the EEOC tolls the statute of limitations under title

VII, we assume, arguendo, that it does. Title VII’s

time limits are not jurisdictional and therefore may

be waived by a party for whom they would

otherwise serve as a defense. See Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 393 (1982).

Thus, to the extent that the University may have

been able to assert a defense based on the fact that

Hayatavoudi’s EEOC complaint was notfiled until

June 1997, it has waived that defense by failing to

assert it on appeal.

9 See, e.g., Webb v. Cardiothoracic Surgery

Assocs., P.A., 139 F.3d 532, 537 (5th Cir. 1998)

(“Application of [the continuing violation” theory

relieves a Title VII plaintiff from the burdens of

proving that the entireviolation occurred within the

actionable period provided the plaintiff can show a

series of related acts, one or more of which falls

within the limitations period.”).

10 Normally, the McDonnell Douglas

framework is used in analyzing claims of

discrimination based on adverse employment

action. As discussed supra, Hayatavoudi admits

that he has no viable claims for discriminatory

employment actions. Because, however, he

contendsthat past employment actions are evidence

of a hostile work environment, we must evaluate

those actions for discriminatory animus. The

McDonnell Douglas framework is an appropriate

device by which to do so.
6

“American born” citizens to those of foreign

nationality. Standing alone, such a statement

might be indicative of discriminatory animus;

in the deposition, however, Ponter also

indicated his basisfor the statement, that under

his view of United States immigration law, “if

you have a U.S. citizen and a foreigner with

exactly the same qualification, you take the

U.S. citizen.” Viewed in context, Ponter’s

assertion represents merely an imprecise

formulation of his (accurate) view of the

University’s rights under federal immigration

law.11 

More importantly, the University has articulated a legitimate, non-discriminatoryjustification for itsfailure to consider Hayatavoudi

for the position. Gary Marota, the

University’s vice president for academic

affairs, indicated that he had instructed Ponter

to look for a department head fromoutside the

department, given the fact that every member

ofthe department, including Hayatavoudi, had

in the past served as department head, each

“with great disaster.” Given this legitimate

justification for hiring Reike, an outsider,

instead of Hayatavoudi, and the inability of

Hayatavoudi to show that the justification is

pretext, we cannot conclude that the

University's choice of department head results

from any racial, ethnic, or religious animus.

Hayatavoudi complains about his

unfavorable performance evaluations. He

contends that the unfavorable scores and

comments included in his evaluations are the

result of discriminatory animus and are not

indicative of his actual performance. The

record reflects that, while Hayatavoudi’s

overall scores are generally unfavorableSShe

has received a rating of four every year since

Reike began the evaluation process, except for

1997, when he received a “three-star”12SSthey

are not substantially worse than those of any

other member of the department, with the

exception of Ali Ghalambour, an Iranian

professor who consistently receives ratings of

one and two. Notably, Hayatavoudi has failed

to show that he was treated differently, with

respect to his overall scores, from any nonminority member of the department.13

More than the overall scores, Hayatavoudi

complains about his ratings in the area of research, where he hasreceived consistently low

scores.14 The record reflects, however, that

the unfavorable evaluations were always accompanied by detailed explanations, providing

legitimate justification for the ratings.

Hayatavoudi often failed to sign the

evaluations, because he felt they were unfair,

11 Ponter’s exposition of the law on this point is

correct: “[I]t is not an unfair immigration-related

employment practice for a person or other entity to

prefer to hire, recruit or refer an individual who is

a citizen or national of the United States over

another individual who is an alien if the two

individuals are equally qualified.” 8 U.S.C. §

1324b(a)(4).

12 The faculty rating system allows an

evaluatorSSin this case, ReikeSSto assign ratings

from one to four. One is the highest rating a

professor can attain under the system, while four

indicates unsatisfactory performance. Three

indicates satisfactory performance, while “threestar” indicates performance at a levelslightly higher than three.

13 Although the petroleum engineering

department had only one non-minority member,

that professor consistently received ratings of four.

14 It is undisputed that Hayatavoudi received

consistently high ratingsfromReike in his teaching

evaluations.
7

and he made numerous complaints to

University administration about the

evaluations; there is, however, no evidence in

the record that those complaints alleged any

racial, ethnic, or religious motivation for the

evaluations. Moreover, the record reflects that

Hayatavoudi failed to take advantage of

invitations to discuss his evaluations with the

University administration.

Regarding the substance of the

evaluationsSSthat he failed to meet standards

forscholarlyproductionSSHayatavoudi argues

that he has produced fifteen publications, one

patent, and four pending patents. In his

deposition, however, he could point to only

one publication, four abstracts, and no

proposals during the first eight months of 1998

and two or three abstracts, resulting in two

publications, during 1997. One of the 1997

publications discussed his sole patent, which

appearsto cover an invention made during the

course of an independent contract with an

outside company, not within the scope of his

employment at the University. 

Although Hayatavoudi remembers

publishing something in 1996, he cannot

remember the substance of that article. Reike

stated, in his deposition, that he instructed

Hayatavoudi to produce at least one research

proposal per semester and that Hayatavoudi

had failed to comply with that instruction;

Hayatavoudi does not dispute this contention.

To summarize, other than a vague statement

regarding the number of publications he has

produced throughout his career, Hayatavoudi

can point to no evidence showing that his

production deserves a rating higher than four.

On this record, there is nothing to show that

the University’sjustification for Hayatavoudi's

low evaluationsSSthat he failed to produce

enough publications or proposalsSSis mere

pretext.

Hayatavoudi next takes issue with what he

terms the “revocation” of his endowed

professorship. Hayatavoudi contends that the

revocation is the result of discrimination. The

University admits that Hayatavoudi lost the

professorship but contends that the

professorship is awarded on renewable threeyear terms. Because Hayatavoudi failed to reapply for the professorship, it expired. 

Hayatavoudi does not dispute that he failed

to reapply for the professorship but seems to

contend that he did not need to reapply. Notably, he has not produced any evidence that

the expiration of his professorship was related

to racial, ethnic, or religious animus or that his

failure to reapply is merely pretext for

discrimination. 

Hayatavoudi also complains about a

research stipend that was revoked when his

research was not approved. Although he

allegesthat the researchwas pre-approved and

that the disapproval was therefore improper,

he provides no evidence supporting the

allegation. Such a bare allegation is not

probative with respect to the issue of whether

the stipend revocation was motivated by

discrimination. Neither the expiration of

Hayatavoudi’s professorship nor the

revocation of his research stipend evidences

any racial, ethnic, or religious animus.

Hayatavoudi alleges that in an attempt to

force him to resign, the University subjected

him to “harsher working conditions” than

those faced by other faculty members. The

only support we can find in the record for this

allegation is the assertion in his affidavit that

“[h]e was never provided a safe environment

to teach [sic] after his injury and did have to
8

teach in his dormitory for a period of time.”15

The record reflects that Hayatavoudi was

told repeatedly that he was not allowed to

teach from his dormitory room because it was

against University policy, yet he continued the

practice. Other than his testimony that his

back injury and urinary tract surgery rendered

him unable to teach in a classroom, Hayatavoudi fails to support, with facts in the record, his allegation of unsafe environment.

More importantly, he failsto establish anyconnection between his allegations and any racial,

ethnic, or religious animus. As we have said,

unsupported allegations are not probative

evidence of hostile work environment.

Finally, Hayatavoudi complainsthat he was

“subjected to continuous defamatory remarks

to his peers and students by Dean Ponter and

Dr. Herman Reike, such as stating ‘you are no

research professor’ and ‘your work is no

good.’” Hayatavoudi has failed, however, to

produce the testimony of any peers orstudents

supporting these allegations.

Once again, unsupported allegations

provide no evidence of any racial, ethnic, or

religious animus on the part of Reike or Ponter. Viewing the evidence in the light most

favorable to Hayatavoudi, we cannot conclude

that any of the actions of which Hayatavoudi

complains provide evidence that he was

subjected to discrimination or a hostile work

environment. 

B.

Having disposed of all of Hayatavoudi’s

“supporting” allegations, we now turn to the

allegations that directly undergird his hostile

work environment claim. The first of those allegations is the “Jewish song.” We need not

decide the perverse issue of whether the mere

singing of a Jewish song around a Moslem

constitutesreligious harassment, becauseHayatavoudi’s unsupported allegationcannotform

the basis for relief. 

Nowhere in the record do we find support

for the allegation; in fact, during his

deposition, Hayatavoudi could not even state

with any degree of specificity when the event

occurred or who may have witnessed it.

Likewise, accepting as true Hayatavoudi’s

allegation that Reike told him that the Saudis

were “getting rid of their amadies,” we fail to

see how the recounting of an observed

phenomenon, without more, can possibly be

considered harassing conduct. We therefore

cannot conclude that either of these events is

probative of the ultimate fact of racial, ethnic,

or religious harassment.

The events that occurred on and after

March 5, 1996, form the primary basis for

Hayatavoudi’s hostile work environment

claim.16 In evaluating whether these events

constitute “discriminatory conduct [that] was

severe or pervasive enough to create an

15Because neitherthepleadings nor Hayatavoudi’s brief describesthe harsh conditions, we are left

to speculate as to what he may have been referring.

16 Hayatavoudi also asks us to consider, in

evaluating his hostile work environment claim, the

“Ayatollah Assodollah” comment and the confrontation between himself and Farshad. Those

events occurred in 1982, and Hayatavoudi cannot

show that any discriminatory conduct has occurred

in the intervening period. Moreover, Farshad, the

antagonist in each of those events, no longer works

in the petroleum engineering department. On these

facts, we cannot conclude that either event is

probative of pervasive racial, ethnic, or religious

hostility within title VII’s limitation period. 
9

objectively hostile or abusive work

environment,” Walker, 214 F.3d at 625 (citing

Harris v. Forklift Systems, Inc., 510 U.S. 17,

22 (1993)), we must be mindful that “Title

VII is not a general civility code for the

American workplace . . . .” Indest v. Freeman

Decorating, Inc., 164 F.3d 258, 263 (5th Cir.

1999) (single-judge opinion) (citing Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75,

81 (1998)). Indeed, “conduct must be extreme

to amount to a change in the terms and

conditions of employment . . . .” Faragher,

524 U.S. at 788. The proper title VII analysis

“will filter out complaints attacking the

ordinary tribulations of the workplace,such as

the sporadic use of abusive language, genderrelated jokes, and occasional teasing.” Id. (internalquotationmarks omitted)(discussing, in

the context of a sexual harassment suit, the

“demanding” standard a court must use to

properly judge hostility).

Having decided that neither the University’s

employment decisions nor the two prior

interactions between Reike and Hayatavoudi

provide probative evidence with respect to the

ultimate issue in this caseSSwhether racial,

ethnic, or religious animus contributed to the

admittedlyhostile atmosphere inthe petroleum

engineering departmentSSwe nowevaluate the

March 1996 altercation. Viewed most

favorably to Hayatavoudi, that incident

consists of the following: (1) Reike’s “dog in

the desert” comment to Hayatavoudi; (2) the

chest “butting” between Reike and Hayatavoudi; (3) Reike’s “idiot” insult; and (4) Reike’s

allegation that Hayatavoudi’s wastefulness

amounts to thievery. Because all the events

occurred during one altercation, the allegedly

discriminatory conduct plainly was not

pervasive. The sole remaining issue, therefore,

is whether any of the eventsSSor their

confluenceSSwas severe enough to form a

basis for a Title VII claim.

Assuming, arguendo, that Reike’s “dog in

the desert” comment was motivated by racial

animus,17 that comment alone does not rise to

a levelsufficiently severe to support a title VII

claim. We have stated that “mere utterance of

an ethnic or racial epithet which engenders

offensive feelings in an employee” does not

constitute actionable harassment under title

VII. Rogers v. EEOC, 454 F.2d 234 (5th Cir.

1971), quoted in Faragher, 524 U.S. at 787.

Coupled with the physical “bump,”

however, Reike’s comment becomes a closer

call.18 Nonetheless, in looking at “all the

circumstances,” as required by Faragher, id.,

the altercation did not constitute harassment

severe enough to alter the conditions of employment. There appear to have been no negative ramifications resulting from the incident;

indeed, Hayatavoudi concedes that the

atmosphere in the department has been

relatively placid since then.19 In summary, a

17 This is not to say that such an assumption is

dictated by the facts of this case. Indeed, it seems

far more plausible to conclude that Reike, upset

over the faculty’s interruption of the department

meeting, simply confronted Hayatavoudi, whom

Reike (correctly or incorrectly) assumed to be the

leader of the mutiny, with an allegory he had

learned during his extensive travels to Moslem

countries. 

18 As we note supra, one of the factors to

consider in evaluating discriminatory conduct is

“whether it is physically threatening or humiliating,

or a mere offensive utterance . . . .” Faragher, 524

U.S. at 787-88. 

19 In fact, Marota and Ponter testified that Reike

was informally reprimanded after the incident, and

(continued...)
10

primarily verbal altercation, during which

nothing more physically threatening than chest

“butting” occurred, is notsufficientlysevere to

justify relief under title VII. 

The fact that Reike called Hayatavoudi an

idiot during the altercation does nothing to

alter our analysis. During a heated exchange,

it is not unusual for combatants to exchange

such unpleasantries; that comment utterly fails

to provide any probative evidence of racial

animus. Likewise, Reike’s assertion that Hayatavoudi’swastefulnessistantamount to thievery is nothing more than an angry statement

made during an altercation; it displays no racial

animus.20

V.

Without a doubt, the environment in the

petroleum engineering department was far

from harmonious. To the extent that the strife

in that department exceeded the infighting typical of academic settings, however, we cannot

conclude that racial animus caused the

aberration. With respect to each of the

employment actions Hayatavoudi mentions,

the University has produced legitimate, nondiscriminatory justifications to counter every

colorable allegation. Even after extensive

discovery, Hayatavoudi cannot show that any

of the asserted justifications is pretext. 

With respect to the strained relationship

between Reike and Hayatavoudi, the only allegation even remotely indicative of racial

animus is the altercation in March 1996. That

event cannot be described assevere enough to

alter Hayatavoudi’s conditions of employment,

however, and therefore cannot on its own

support a title VII claim.

The district court aptly summed up this

case when, in its oral ruling granting summary

judgment, it stated that “[t]hese two guys just

didn’t get along” but that “I don’t think . . . a

jury could find that it had anything to do with

race, religion, or national origin.” Hayatavoudi hasfailed to establish a material issue offact

with respect to each of the elements of his

prima facie claim. In particular, he cannot establish a fact issue with respect to whether the

University’s conduct was severe or pervasive

enough to alter the conditions of his

employment. Viewing all the supportable

allegations in the light most favorable to

Hayatavoudi, we conclude that the district

court properly granted summary judgment.

AFFIRMED.

19(...continued)

Hayatavoudi concedes that there have been no

other incidents since the March 1996 incident and

speculates that “somebody may have talked to

[Reike].”

20Moreover,Reike contendsSSandHayatavoudi

does not disputeSSthat Reike’s statement resulted

from a conversation with other faculty members in

which they described Hayatavoudi's purported

wastefulness.