## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 00-30389

Summary Calendar

_______________



### A SODOLLAH 

### H AYATAVOUDI



### ,

Plaintiff-Appellant,

VERSUS



### U NIVERSITY OF 

### L OUISIANA 

### S YSTEM 

### B OARD OF 

### T RUSTEES

AND



### U NIVERSITY OF 

### S OUTHWESTERN 

### L OUISIANA



### ,

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 o f t he University of Louisiana System Board of Trustees an d t he University of So ut hwestern Louisiana 2 (collec

* Pursuant to 5 TH C IR. 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 5 T H C IR

. * (...continued)

R. 47.5.4.

2 We take judicial notice that the University of

Southwestern Louisiana has since changed its name

(continued...)2

t ively, the “University”) on his title VII claim

of employ m ent discrimination. Because we

agree with the district court that Hayatavoudi

adduced insufficient evid ence of discrimination

to allow a reasonable j ury t o find the University liable, we affirm.

I.

Hayatavoudi, an Iranian-Ame r ican of the

Shiite Moslem faith, is a te nured professor in

the petroleum engineering department, headed

by Herman Reike, who joined the University in

1994. 3 Hayat avoudi has taught at the University since 1980, except for periods of time

he spent on sabbatical at Stanfor d University

and on leave because of an injury. With one

exception, however, the events relevant to this

appeal occurred after 1992.

Hayatavoudi a l leges several adverse employment actions. 4 First, he complains that in

1994, his supervising dean, Anthony P o nter,

wrongfully denied him a p romoti on to department head in favor of a “white male who was U.S. born.” Second, Hayatavoudi complains about unfavorable performance rat ings

from supe rvisors, resulting in lost raises.

Third, he objects to the 1994 expiration of his

e ndowed 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” t o

“discourage h i m 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 instanc es of racial harassment. The

first is a comment made by a colleague 

### SS who

h as since transferred from the petroleum engineering department to the chemic al engineering department 

### SS

during the Iran hostage

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

colleague lunged at him duri n g a 1982 meeting, calling him names and referring to him as

“dead meat.”

F u rther, Hayatavoudi contends that

“toward the middle of the [spring] semester of

1995,” Reike sang a “Jewish s o ng” in his

presence. Hayatavoudi also alleges that,

sometime “during the fall or spring of 1996,”

Reike t o ld 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 him and Reike stemmin g 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 assume SS

without deciding SS

that Rieke’s

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

of title VII analysis.

4 Because t his appeal arises from a summary

j udgment, we recount the facts in the light most

favorable to the non-movant, H ayatavoudi. See

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

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

that we must give credence to unsupported

allega tions: “[C]onclusory allegations unsupported

by concrete and particular facts will not prevent an

award of summary judgment.” I d. ( citing

A nderson 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

de part ment secretary as much as in the past.

Upset, the faculty members walked out of the

meeting.

Apparently feeling that Hayatavoudi had l ed

the uprising, Rei

ke co nfronted him in the

hallway after the meeting. Reike, who is

white, told Hayatavoudi that he was like “the

dogs in the desert, howling as the 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 thie very

. The altercation escalated and ended with a

physical confr ontati

on 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 que st ionnaire” with the Equal Employment Opportunity Commission (“ E EOC”)

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 com plaint in a right-to-sue letter a month

later.

Shortly thereafter, Hayatavoudi filed the

instant compl aint alleging title VII claims on

theo r ies of adverse employment action and

hostile work environment. Aft er discovery,

the University moved for summary judgment,

which the district court granted after a hearing,

ruling th at Hayatavoudi had produced no

evidence indicating that Reike’ s evaluations

were mo t ivated by impermissible

discrimination, that Hayatavoudi had not

produced suff

icient 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 of the EEOC charges and

thus were prescribed under title VII.

Hayat avo udi appeals the portion of the

summa ry judgment rationale that concludes

th at he had produced insufficient evidence of

a ho stile work environment. He concedes,

however, that his “individual claims of adverse 6 The evidence conflicts regarding the substance

o f 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, acc ording 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 scre aming at one another, with

Reike pointing his finger at Hayatavoudi's face. In

response, Ha yatavoudi shoved Reike, at which

poin t Reike said, “You assaulted me” and told

Hayatavoudi he had made a fatal mistake, 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 hand s behind his back and “was

going to take the hit.”

(continued...) 6 (...continued)

Viewing the facts most favorabl y to Hayatavoudi, Reike bumped into Hayatavoudi, causing the

physical confrontation. We find it troubling that,

while both parties agree that several observers

wi t nessed 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 consti tute

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

however, reference [those] claims

. . . as

sup po rt ing evidence that he was subjected to

a hostile environment.”

III.

We review a summary judgment d e novo

, applying the same standard as did that court.

See Waymire v. Harr is 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. Cat rett , 477 U.S. 317, 321-23

(1986). “Conclusory allegations unsupported

by specific facts, however, will not prevent an

award of summary judgment; ‘the plaint iff

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

jury without any significant probative evidence

tending to support the complaint.’” National

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

Bd.

, 40 F.3d 698, 713 (5th Cir. 1994) (quoting

Anderson v. L iberty Lobby, Inc. , 477 U.S.

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

IV.

To survive summary judgment on a hostile

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

the elements: “(1) raciall

y discriminat

o ry int imidation, ridicule and insults that are; (2) sufficient ly severe or pervasive that they; (3) alter

the condition s o f employment; and (4) create

an abusive working environment.” Walker v.

Thompson

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

(citing DeAngelis v. El Paso M un. 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

co nduct, including “[its] frequency . . .; it s severity; whether it is physically threatening or

humiliat ing, 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.” I d.

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

however genuine, cannot be the basis of

jud icial relief.” V

ance v. Union Planters

Corp.

, 209 F.3d 438, 4 44 (5th Cir. 2000)

(internal quotation marks omitted).

A.

Hayatavoudi acknowledges the infirmit y of

a ny claims related to employment acti ons

taken more t han 300 days before the filing of

his EEOC questionnaire. 8 Nor does he

7 Although Faragh er 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 interchan g eable, we think there is good

sen se in seeking generally to harmonize the

s tandards of what amounts to action able

harassment.” F

aragher

, 524 U.S. at 786-87 &

n.1.

8 Title VII imposes time limits on plaintiffs

seeking to recover for discriminatory actions. S ee

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

serves to insulate those claims from the statute

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

evidence of the hostile nature o f 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

limitati o ns. Because we conclude that

Hayatavoudi has produced no evidence t hat

the past employment actions were motivated

by discriminator y animus and, thus, that they

are of no probat i ve 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 plaint iff se eking

to survive summary judgment must establish a

prima facie case of discrimination. S ee Reeves

v. Sanderson Plumbi ng 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

. ” I d. (internal

quotation marks omitted).

To survive summary judgment, however,

the plaint iff may still show that the defendant’s

proffered justification is mere pretext. S ee id.

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

trier of fact to infer discriminatory motive. S ee

id. at 2108.

The first empl o yment action Hayatavoudi

describes is Ponter’s failure to consider him for

appointment to depar tm

ent head. Hayatavoudi

cites Ponter’s deposition t estimony that in

choosing a department head, Ponter preferred 8 (...continued)

bay v. Moore

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

Because ne ither 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 se

rve as a defense. S ee Zipes v. Trans

World Airlines, Inc.

, 455 U.S. 385, 393 (1982).

Thus, to the extent that t he University may have

been able to assert a defense based on the fact that

Hayatavoudi’s EEOC complaint was not filed 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.3 d 532, 537 (5th Cir. 1998)

(“Application of [the continuing violation” theory

relieves a Tit l e VII plaintiff from the burdens of

proving that the entire violation occurred within the

actionable period provided the plaintiff can show a

series of related acts, one o r mor e of which falls

within the limitations period.”). 10 Normally, the McDonnell Douglas

framework is used i n analyzing claims of

discrimination

based on adverse employment

action. As discussed s upra

, Hayatavoudi a dmits

tha t he has no viable claims for discriminatory

employment actions. Because, however, he

contends that past employment actions are evidence

of a hostile work environme nt, we must evaluate

those actions for discriminat o ry animus. The

McDonnell Douglas framework is an appropriate

device by which to do so.6

“American born” citizens to tho se of foreign

nationality. Standing alone, such a statement

might be indicative of discriminatory animus;

in th e deposition, however, Ponter also

indicated his basis for the statement, that under

his view of United States immigration law, “if

you have a U.S. citizen and a for eigner wi th

exac t ly the same qualification, you take the

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

assertion represen t s merely an imprecise

formula t ion of his (accurate) view of the

University’s rights under federal im migration

law. 11

More importantly, the Universityhas articulated a l e gitimate, non-discriminatory justification for its failure to consider Hayatavoudi

for t he position. Gary Marota, the

University’s vice president f o r academic

affairs, indicated that he had instructed Ponter

to look for a department head from outside the

department, given the fact that every member

of the department, including Hayatavoudi, had

in the past served as depa rtment head, each

“with great disaster.” Given this legit imate

justification for hiring Reike, an outsider,

instead of Hayatavoudi, and the inabilit y of

Hayatavoudi to show that the justif i cation is

pretext, we cannot conclude tha t 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

co mments included in his evaluations are t he

result of discriminatory animus and are not

indicative of his actual p e rformance. The

record reflects that, while Hayatavoudi’s

overall scor es are generally unfavorable 

### S S he

has received a rating of fo ur every year since

Reike began the evaluation process, except for

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

### SS they

are not substantially w orse than those of any

other member of the department, with the

except i on of Ali Ghalambour, an Iranian

professor who consistently receives ratings of

one and two. Notably, Hayatavoudi has failed

to sho w 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 ab o ut his ratings in the area of research, where he has received consistently low

scores. 14 The record reflects, however, that

the unfavorable evaluations were always accompanied by detailed explanations, providing

legitimate justification for the ratin g s.

Haya t avoudi 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 o r national of the United States over

another indivi dual who is an alien if the two

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

1324b(a)(4). 1 2 The faculty rating system allows a n

evaluator SS

in this case, Reike SS

to assign ra t ings

from one to four. One is the highest rating a

profess or can attain under the system, while four

indicates unsatisfactory perfor m ance. Three

indicates satisfact o ry performance, while “threestar” indicates performance at a level slightly higher than three.

13 Although the petroleu m engineering

depa r tment had only one non-minority member,

that professor consistently received ratings of four.

14 It is undisputed that Haya tavoudi received

consistently high ratings from Reike in his teaching

evaluations.7

a nd he made numerous complaints to

Universit

y administ rat ion about the

evaluations; there is, however, no evidence in

the record that those complaints alleged any

racial, ethnic, or religious motivati o n for the

evaluations. Moreover, the record reflects that

Hayatavoudi failed to take advantage of

invitations to discuss his evaluations with the

University administration.

Regardi ng the substance of the

evaluations 

### SS

that he failed to meet standards

for scholarly producti on 

### SS Hayatavou di argues

that he has produced fifteen publications, one

pat ent, and four pending patents. In his

deposition, however, he cou ld poi nt to onl y

one publication, four abstracts , and no

proposals during the first eight months of 1998

and two or three abstracts, resulting in two

publi cat io ns, during 1997. One of the 1997

publications discussed his sole patent, which

appears to cover an invention made during the

course of an indep endent contract with an

outside company, not within the scope of his

employment at the University.

Although Hayatavoudi remembers

publishing someth i ng in 1996, he cannot

remember the substance of that article. Reike

stated, in his dep osition, that he instructed

Hayatavoudi to produce at least one research

p roposal per semester and that Hayatavou d i

had failed to comply with that instruction;

Hayatavoudi does not dispute this contention.

To summ a rize, other than a vague statement

reg arding the number of publications he has

produced throughout his career, Hayatavoudi

c a n point to no evidence showing that his

producti on deserves a rating higher than four.

On this record, there i s nothi ng to show that

the University’s justification for Hayatavoudi's

low evaluations 

### SS

that he failed to produce

enough pu blications or proposals 

### S S is 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 b ut seem s to

contend that he did not need to reapply. Notab ly, 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 stip end that was revoked when his

research was not approved. Although he

alleges that the research was pre-approved and

that t he disapproval was therefore improper,

h e 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 t he expiration of

Hayatavoudi’s professorshi p nor the

revocation of his research stipend evidences

any racial, ethnic, or religious animus.

Hayatavoudi alleges that in an attem pt to

fo rce him to resign, the University subject ed

him to “harsher working conditions” than

those faced by other faculty memb ers. The

only support we can find in the record for this

allegation is the assertion in his affi davit that

“[h]e was never provided a safe environment

to teach [sic] after his injury and did have to8

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

The record reflects that Hayatavoudi was

t o ld repeatedly that he was not allowed to

teach from his dormitory room because it was

against University policy, yet he continued the

prac t ice. 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 enviro nment.

More importantly, he fails to establish any connection 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 complains that 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 ‘ yo ur work is no

good.’” Hayatavoudi has failed, however, to

produce the testimony of any peers or students

supporting these allegations.

Once again, unsupported allegations

prov ide no evidence of any racial, ethnic, or

religious animus on the part of Reike or Pont er. Viewing the evidence in the light mo st

favorable to Hayatavoudi, we cannot conclude

that any of the actions of

which Hayatavoudi

complains pro vide evidence that he was

subjected to discrimination or a hostile work

environment.

B.

Hav ing 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 s ong.” We need not

decide the perverse issue of whether the mere

singing of a Jewish song around a Moslem

constitutes religious harassment, because Hayatavoudi’s unsupported allegation cannot form

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 Rei

k e told him that the Saudis

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

see how the recountin g of an observed

phenomenon, without more, can possibly be

considered harassing conduct. We therefore

cannot conclude that either of these e vents 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 b asis 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

15 Because neither the pleadings nor Hayatavoudi’s brief describes the harsh conditions, we are left

to speculate as to what he may have been referring. 16 Hayatavoudi al so asks us to consider, in

evaluating his hostile work environment claim, the

“ Ayatollah Assodollah” comment and the confrontation between him self 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 religi ous

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

V II is not a general civility code for the

American workplace

. . . .” I ndest v. Freeman

Decorating, Inc.

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

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

Sundow ner Offshore Servs., Inc.

, 523 U.S. 75,

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

to amount to a change in t he terms and

conditions of employ ment . . . .” F aragher

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

“will filt er out com

p laints attacking the

ordinary tribulations of the workplace, such as

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

the context of a sexual harassment su it, the

“demandi ng” standard a court must use to

properly judge hostility).

Having de ci

ded that neither the University’s

employment decisions nor the two pri or

interactions between Reike and Hayatavoudi

provide probative evidence with respect to the

ultimate issue in this ca se 

### S S whether racial,

ethnic, or religious animus cont ributed to the

admittedly hostile atmosphere in the petroleum

engineering department 

### SS we now evaluate the

March 1996 altercation. Viewed most

favorably to Hayata v oudi, that incident

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

the desert” co mment to Hayatavoudi; (2) the

chest “buttin g” between Reike and Hayatavoudi; (3) Reike’s “idiot” insult; a nd (4) Reike’s

a llegation that Hayatavoudi’s wastefulnes s

amounts to thi every. 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 even t s 

### SS or their

confl uence 

### S S was severe enough to form a basis for a Title VII claim.

Assuming, arguendo

, that Reike’s “dog in

the desert” comment was m o tivated by racial

animus, 17 that comment alone does not rise to

a level sufficiently 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 harass ment under title

VII. R ogers v. EEOC

, 454 F.2d 234 (5th Cir.

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

Coupled with the physi cal “bump,”

however, Reike’s comme nt becomes a closer

call. 18 Nonetheless, in looking at “all the

circumstances,” as required by Faragher

, id.

,

t he altercation did not constitute harassment

severe enough

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

indeed, Hayat avoudi concedes that the

at mosphere in the department has been

relatively placid since then. 1 9 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

mee ting, simply confronted Hayatavoudi, whom

Reike (correctly or incorrectly) assumed to be the

leader of the mutiny, with an alle gory he had

learned du r ing his extensive travels to Moslem

countries.

18 As we note supra

, one of the factors to

consider in evaluat ing discriminatory conduct is

“whether it is physically threatening or humi l iating,

or a mere offensive utterance

. . . .” F aragher

, 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 not sufficiently severe to

justify relief under title VII.

T he fact that Reike called Hayatavoudi a n

idiot during the altercation does nothing to

alter our analysis. During a heated exchange,

it is not unusual f

or combatants to exchange

such unpleasantries; that comment utterly fails

to provide any probative evidence of racial

animus. Likewise, Reike’s assertion that Hayatavoudi’s wastefulness is tantamount t o thievery is nothing more than an angry stat ement

made during an altercation; it displays no racial

animus. 20

V.

Without a doubt, the environment in the

petroleu m engineering department was far

from harmonious. To the extent that the strife

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

conclude that racial animus caused the

aberration. With respect t o each of the

em p loyment 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 t he strained relationship

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

animus is the altercation in March 1996. That

event cannot be described as severe enough to

alter Hayata voudi ’s conditions of employment,

however, and therefore cannot on its own

support a title VII claim.

The d i strict 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 has failed to establish a material issue of fact

with respect to ea c h 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 conditio ns o f his

employment. Viewing all the supportable

allegations i n the light most favorable to

Hayatavoudi, we conclude that the district

court properly granted summary judgment.

AFFIRMED.

19 (...continued)

Hayatavoud i concedes that there have been no

other incidents since the March 1996 incident and

speculates that “somebody may ha ve talked to

[Reike].”

20 Moreover, Rei ke contends SS and Hayatavoudi

does not dispute SS

that Reike’s statement resulted

from a conversation with other faculty members in

which they described Hayatavoudi's purported

wastefulness.