IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30160

Summary Calendar

NANDINI VASUDEVAN, 

 Plaintiff - Appellant

v.

ADMINISTRATORS OF TULANE EDUCATIONAL FUND, incorrectly 

designated as Tulane University; MICHAEL A. BERNSTEIN; NICHOLAS 

ALTIERO, 

 Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:16-CV-284

Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit 

Judges.

PER CURIAM:*

Nandini Vasudevan did not receive tenure at Tulane University and 

subsequently brought suit claiming discrimination based on race, gender, and 

national origin and retaliation under Title VII of the Civil Rights Act, and 

 

* 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

Fifth Circuit

FILED

August 22, 2017

Lyle W. Cayce

Clerk

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conspiracy to violate her civil rights under 42 U.S.C. § 1985(3). After repeated 

failure to timely or properly file her opposition to summary judgment,1 the 

district court struck her opposition and granted summary judgment in favor of 

Defendants-Appellees. We AFFIRM.

I. BACKGROUND

Vasudevan was a tenure-track assistant professor of cell and molecular 

biology at Tulane University’s School of Science and Engineering. Her nation 

of origin is India. Tulane’s tenure-review process includes a midpoint 

evaluation after three years with an ultimate decision on tenure made after a

full review in the candidate’s the sixth year. The review process is 

standardized and laid out in the Tulane University Faculty Handbook.

In 2011, Vasudevan’s third-year review was unfavorable. In particular, 

the review noted a lack of scholarly articles published. It stated that she had 

not published any scholarly paper after arriving at Tulane, and Vasudevan 

received an explicit warning to increase her rate of publication. Yet, her lack 

of publications persisted. All told, there was a five-year gap during which 

Vasudevan published no scholarly papers. 

Tulane’s tenure review culminates in a multi-step process. First, a 

candidate receives an initial review by the tenured faculty in her department. 

Next, the School-wide Promotion and Tenure Committee, a body elected from 

the tenured faculty, reviews the candidate’s application and makes a 

recommendation to the dean of the candidate’s college. The dean evaluates the 

committee’s recommendation and makes his own recommendation to the

University Provost. The Provost then evaluates the candidate’s file and the 

prior recommendations before making an ultimate determination of whether 

 

1 After repeated delays, Plaintiff-Appellant hand-delivered a copy of the opposition to 

the district court’s chambers, two days past the last granted extension, and without 

complying with the court’s electronic filing requirements. 

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to grant tenure. A feature of the tenure review process is an examination of 

the candidate’s research, which includes letters solicited from anonymous

experts in the candidate’s field outside of Tulane. These experts evaluate a

candidate’s research productivity and quality. 

In 2013, six tenured faculty members in Tulane’s Cell and Microbiology 

Department recommended Vasudevan’s promotion. Next, the School-wide 

Committee reviewed her file, including six external review letters. Some of the 

letters were favorable, but several were critical of her lack of scholarly 

publications. After its review of Vasudevan’s record, the School-wide 

Committee voted six-to-one against recommending Vasudevan’s tenure and 

promotion. The School-wide Committee’s letter noted its concern about 

Vasudevan’s long gap without any publications and stated that “the majority 

of the Committee was not convinced that [her] recent surge in publications is 

a predictor of future productivity rather than a last-minute temporary spurt.” 

Ultimately, the School-wide Committee concluded that “[Vasudevan’s] 

productivity and quality of work did not meet the standards for promotion and 

tenure at Tulane.” Dean Nicholas Altiero agreed with the School-wide 

Committee’s decision not to grant tenure. Although he noted Vasudevan’s 

satisfactory “teaching and service,” he found that “in the area of 

research . . . Dr. Vasudevan does not meet the standards that are expected for 

promotion.” University Provost Michael Bernstein made the decision not to 

grant Vasudevan tenure, again citing the multi-year gap in scholarly 

publications as the primary reason. Bernstein informed Vasudevan of his 

decision via letter on August 8, 2014. Vasudevan did not appeal the denial of 

tenure.

About seven months after the denial of tenure, Vasudevan filed two 

grievances: one with the Faculty Grievance Committee and the second with 

the Office of Institutional Equity. She claimed that the decision not to grant 

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her tenure was discriminatory. The grievances were investigated, but the 

investigation, which took several months to complete, eventually concluded 

that there was no evidence of discrimination.

II. PROCEDURAL HISTORY

Vasudevan filed suit in federal district court against Administrators of 

Tulane Educational Fund, Bernstein, and Altiero (collectively “defendants”). 

She brought discrimination claims under Title VII based on race, gender, and 

national origin. She also alleged retaliation under Title VII, asserting that 

Tulane intentionally delayed the investigation into the internal grievances she 

filed in an attempt to harm her work and force her to leave Tulane. Finally, 

Vasudevan claimed Bernstein and Altiero engaged in a conspiracy to violate

her civil rights in contravention of 42 U.S.C. § 1985(3) by impeding hearings 

into grievances filed by Vasudevan and by refusing to release the identity of 

the anonymous experts. 

On January 17, 2017, defendants filed a motion for summary judgment. 

Vasudevan had an original deadline of January 24, 2017 to file her opposition

to the motion for summary judgment. On January 20, 2017, Vasudevan 

requested a thirty-day extension of time to respond. The district court granted 

a fourteen-day extension—to February 7, 2017—and set a hearing with oral 

argument for February 15, 2017. Vasudevan failed to file her opposition 

motion by the extended deadline. Instead, on February 8, 2017, she filed a 

motion for leave to file an out-of-time opposition. The district court granted 

the motion, setting noon on February 13, 2017, as the new deadline to file her 

opposition. 

Again, Vasudevan did not comply with the district court’s directive. 

Rather than filing her opposition, on February 13, 2017, Vasudevan filed a 

motion for leave to file her opposition and exhibits under seal and a motion for 

leave to file an opposition in excess of twenty-five pages. The clerk of court 

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found the motions deficient, and neither contained a proposed opposition 

memorandum as an attachment. Defendants aver that the first time they 

received a copy of her opposition was when Vasudevan’s counsel emailed it on

February 14, 2017, at 6:00 PM. The email did not contain any exhibits. 

Defendants were later hand-delivered a copy of the opposition with exhibits on

the afternoon of February 15, 2017. On February 15, 2017, Vasudevan also 

hand-delivered a copy of the opposition to the district court’s chambers but 

never electronically filed the opposition with the clerk of court. Therefore, the 

opposition is not contained in the record on appeal. 

That same day, defendants filed a motion to strike the opposition and a 

motion to expedite submission of its motion to strike. Two days later, on 

February 17, 2017, the district court granted defendants’ motion to strike 

Vasudevan’s opposition. Then, treating defendants’ motion for summary 

judgment as unopposed, the district court granted summary judgment. On the 

same day the district court granted summary judgment, Vasudevan filed a 

Rule 59(e) motion for reconsideration and a motion to expedite. The district 

court denied Vasudevan’s motion for reconsideration on February 23, 2017. 

This appeal followed. 

III. DISCUSSION

Vasudevan claims that the district court abused its discretion by striking 

her untimely opposition and denying her motion for reconsideration. We 

disagree for the reasons that follow.

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A. Grant of Motion to Strike Opposition

We review a district court’s ruling on a motion to strike for an abuse of 

discretion.2 Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 178 

(5th Cir. 2007). 

It is uncontested that Vasudevan’s counsel failed to file her opposition 

timely despite two extensions of time. Indeed, the opposition was never filed 

with the clerk of court and is not contained in the record.3 See Rasco v. Potter, 

265 F. App’x 279, 283 (5th Cir. 2008) (per curiam) (no abuse of discretion in 

denying a motion to allow an untimely opposition to summary judgment where 

the court had granted three prior extensions of time); Adams v. Travelers 

Indem. Co. of Conn., 465 F.3d 156, 161 (5th Cir. 2006) (no abuse of discretion 

where the district court refused to consider an untimely response to summary 

judgment where the district court granted two extensions and the plaintiff 

failed to show excusable neglect); Nelson v. Star Enter., No. 99-30976, 2000 WL 

960513, at *1 (5th Cir 2000) (unpublished) (per curiam) (no abuse of discretion 

in refusing to consider evidence contained in untimely opposition to summary 

judgment and granting summary judgment on race discrimination and 

retaliation claims).

Vasudevan has failed to demonstrate any “excusable neglect” for the late 

filing. See Adams, 465 F.3d at 161. Vasudevan’s counsel admits that “[t]he 

opposition was substantially completed and could have been electronically filed 

 

2 Vasudevan incorrectly refers to the district court’s action as a dismissal of her case 

with prejudice due to her failure to timely file her motion in opposition. Rather, the district 

court struck her opposition to summary judgment and, treating the motion for summary 

judgment as uncontested, granted summary judgment in favor of defendants. 

3 This court generally may not consider evidence outside the record on appeal. See 

McIntosh v. Partridge, 540 F.3d 315, 327 (5th Cir. 2008); In re GHR Energy Corp., 791 F.2d 

1200, 1201 (5th Cir. 1986) (per curiam). Moreover, Vasudevan has not requested to 

supplement the record pursuant to Federal Rule of Appellate Procedure 10(e). See In re GHR, 

791 F.2d at 1201. Vasudevan’s opposition and the 800 pages of exhibits attached to it are

thus not before this court.

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by noon on Monday February 13, 2017, in compliance with the court’s order,” 

but he instead found it necessary to file a motion to seal opposition that “was 

deemed deficient because it was unaccompanied by the pleading.” Although 

Vasudevan’s counsel insists that Vasudevan was not responsible for the late 

filing, “[a] court may hold a party accountable for the acts and omissions of its 

counsel.” Silvercreek Mgmt., Inc. v. Banc of Am. Secs., LLC, 534 F.3d 469, 472 

(5th Cir. 2008).4 

Therefore, the district court did not abuse its discretion in granting 

defendants’ motion to strike. See Cambridge Toxicology Grp., 495 F.3d at 178.

B. Denial of Motion to Alter or Amend the Judgment

Our court reviews the district court’s denial of a motion to alter or amend 

the judgment for abuse of discretion. Luig v. N. Bay Enters., Inc., 817 F.3d 

901, 905–06 (5th Cir. 2016). “A motion to alter or amend the judgment under 

Rule 59(e) must clearly establish either a manifest error of law or fact or must 

present newly discovered evidence and cannot be used to raise arguments 

which could, and should, have been made before the judgment issued.” Schiller 

v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003) (citations and 

internal quotations omitted). “Reconsideration of a judgment after its entry is 

an extraordinary remedy that should be used sparingly.” Templet v. 

HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). 

Vasudevan argues that the district court erred in denying her motion to 

alter or amend the judgment. Her motion details the circumstances 

surrounding her failure to timely file her opposition and requests leave of the 

 

4 Vasudevan also briefly argues that the district court’s decision to strike her 

opposition deprived her of due process. Due process requires that a party have notice and 

the opportunity to present its objections. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 

84 (1988). Vasudevan had notice and multiple opportunities to present her arguments, but 

failed to do so. 

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court to file the untimely opposition.5 Her motion to reconsider does not 

“clearly establish either a manifest error of law or fact,” Schiller, 342 F.3d at 

567, and the circumstances surrounding the late filing were known to 

Vasudevan, who could have responded to the defendant’s motion to strike but 

did not. We perceive no abuse of discretion in the district court’s denial of 

Vasudevan’s motion for reconsideration. See Luig, 817 F.3d at 905–06. 

C. Grant of Summary Judgment

We review a grant of summary judgment de novo. Wiltz v. Bayer 

CropScience, Ltd. P’ship, 645 F.3d 690, 694 (5th Cir. 2011). Although a district

court may not grant summary judgment simply because a party’s motion is 

unopposed, “[i]f a party . . . fails to properly address another party’s assertion 

of fact as required by Rule 56(c),” then “the [district] court may . . . consider 

the fact undisputed for the purposes of the motion [and] grant summary 

judgment if the motion and supporting materials—including the facts 

considered undisputed—show that the movant is entitled to it.” Fed. R. Civ. 

P. 56(e); see also Calais v. Theriot, 589 F. App’x 310, 311 & n.4 (5th Cir. 2015)

(per curiam). 

Having reviewed the defendants’ motion for summary judgment, as well 

as the supporting evidence, we conclude that the district court did not err in 

granting summary judgment. Vasudevan has failed to establish a prima facie 

case that her tenure was denied due to any discriminatory intent. See Tanik 

v. S. Methodist Univ., 116 F.3d 775, 776 (5th Cir. 1997) (per curiam) (listing 

elements). Nor has she rebutted defendant’s proffered non-discriminatory 

reason for denying tenure: her lack of publication productivity. The record also 

 

5 Vasudevan’s purported motion for reconsideration may more properly be construed 

as a motion for leave to file an out of time opposition. See Fed. R. Civ. P. 6(b)(2). If so 

construed, the district court did not abuse its discretion in denying the motion because 

Vasudevan did not demonstrate excusable neglect. See Adams v. Travelers Indem. Co. of 

Conn., 465 F.3d 156, 161 (5th Cir. 2006).

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supports granting summary judgment on Vasudevan’s retaliation claim 

because she has not provided evidence that any delay in her grievance 

procedure—which was ultimately completed—was retaliatory. Additionally, 

Vasudevan has not rebutted defendants’ explanation that Vasudevan took 

considerable time to provide evidence to the investigation and that the 

investigation’s length was necessary to fully evaluate her claims. Finally, the 

record does not show evidence of an agreement between Bernstein and Altiero, 

which is a necessary element of a conspiracy to violate civil rights under 42 

U.S.C. § 1985(3). See Green v. State Bar of Tex., 27 F.3d 1083, 1089 (5th Cir. 

1994). 

Accordingly, the uncontroverted evidence presented by defendants was 

sufficient to support summary judgment. See Wiltz, 645 F.3d at 694.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court.

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