* 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opinion should not be published and is not precedent except under the limited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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 00-50698 

Summary Calendar

______________________

Dr. Dhiraj Pradhan,

Plaintiff-Appellant,

versus

Texas A&M University System, Et Al.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(A-98-CV-534)

_________________________________________________________________

July 2, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Dr. Dhiraj Pradhan, a former member of the faculty at

Texas A&M University (“TAMU”) who is an Indian-American, brought a

litany of claims against the University and several of its

officials in connection with his suspension, termination and the

seizure of a University-owned computer on which he had stored

personal data. The district court granted summary judgment to TAMU

on most of Dr. Pradhan’s claims, including those for racial
2

discrimination in violation of Title VII and procedural due process

violations in connection with his termination. A jury subsequently

found that TAMU had neither violated Dr. Pradhan’s Fourth

Amemndment rights by reclaiming the computer on which he had stored

personal intellectual property, nor converted Dr. Pradhan’s

personal property. Dr. Pradhan now apppeals from both the grant of

summary judgment on the Title VII and due process claims and the

district court’s denial of a new trial on the Fourth Amendment and

conversion claims. Having reviewed the briefs and the pertinent

portions of the record, we find no reversible error of fact or law

and affirm the judgment against Pradham.

DISCUSSION

Dr. Pradhan first argues that he should have been granted

a new trial because the jury’s verdict goes against the great

weight of the evidence. The denial of a motion for a new trial is

reviewed for abuse of discretion, and will be affirmed unless the

appellant can make “a clear showing” of “an absolute absence of

evidence to support the jury’s verdict.” Hidden Oaks Ltd. v. City

of Austin, 138 F.3d 1036, 1046 (5th Cir. 1998). Dr. Pradhan cannot

make this “clear showing” because there was ample evidence to

support the jury verdict. The district court’s denial of Dr.

Pradhan’s motion for a new trial on his Fourth Amendment and

conversion claims is thus affirmed. 
2 Dr. Pradhan does not appeal his conversion claim against TAMU itself.

 

3

Dr. Pradhan also argues that the district court erred by

granting summary judgment to the various individual defendants on

his procedural due process claim because, contrary to the district

court’s conclusions, he had a property interest in various nonsalary “material guarantees” created by his employment contract,

and the individual TAMU defendants were not entitled to qualified

immunity.2 We review grants of summary judgment de novo, applying

the same standards as the district court. See Nowlin Resolution

Trust Corp., 33 F.3d 498, 501-02 (5th Cir. 1994). 

Dr. Pradhan’s argument on this point fails. Dr. Pradhan

has not established a violation of his due process rights, because

no Fifth Circuit authority holds that non-salary benefits, like

those he claims in teaching graduate students and the use of large

amounts of laboratory space, are a “property interest” protected by

the due process clause. Moreover, a state official exercising

discretionary authority is shielded from personal liability by

qualified immunity, unless at the time and under the circumstances

all reasonable officials would have realized that their conduct was

proscribed by the federal law upon which the suit is founded. See

Anderson v. Creighton, 483 U.S. 635, 637-642 (1987); Pierce v.

Smith, 117 F.3d 866, 871 (5th Cir. 1997). Dr. Pradhan complains of

the procedure accompanying his suspension with pay. Because he has
4

failed to establish either the violation of a protected right with

respect to non-salary employment benefits, or that a reasonable

official would have known that his or her conduct was illegal in

suspending Pradham with pay, the district court’s grant of summary

judgment on this procedural due process claim must be affirmed.

Dr. Pradhan’s Title VII hostile work environment claim

presents a more complicated question. Dr. Pradhan claimed two

violations of Title VII in his Second Amended Complaint, alleging

racial discrimination in the 1996 audit and investigation of his

activities which ultimately led to his termination (the “employment

discrimination” claim), and the existence of a hostile work

environment, replete with anti-Indian bigotry, from the time of his

hiring in 1991. These two Title VII claims are distinct and

separate. Early on in these proceedings, TAMU filed a motion for

summary judgment attacking, inter alia, Dr. Pradhan’s Title VII

employment discrimination claim. This motion for summary judgment

made no mention of the hostile work environment claim, although

TAMU sought judgment on all of appellant’s claims. Without

specific discussion or citation to any authority regarding the

hostile environment claim, however, the district court granted

summary judgment as to all “the plaintiff’s claims under the Equal

Protection Clause, Title VII, and § 1981”, evidently including the

hostile work environment claim. Dr. Pradhan appeals the implicit

adverse judgment on the hostile work environment claim. 
5

If the summary judgment ruling alone were on appeal,

Pradhan’s point would have merit. Unfortunately for him, however,

the case went to trial on issues clearly and repeatedly delineated

well in advance in the trial court – procedural due process,

unreasonable seizure, and conversion. If Dr. Pradhan felt that the

court had overlooked his Title VII hostile environment claim, it

was his obligation to have the claim decided at trial. A plaintiff

may not remain mute in the trial court about one of his claims and

complain for the first time on appeal, after both adverse partial

summary judgment and a jury verdict, that the claim was overlooked.

Dr. Pradhan abandoned his hostile environment claim.

For these reasons, the judgment of the trial court is

AFFIRMED.