### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-50068 Summary Calendar

SAURAV PATHRIA, Plaintiff - Appellant
v. UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO, Defendant - Appellee

Appeal from the United States District Court for the Western District of Texas USDC 5:12-CV-388

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * Saurav Pathria was a PhD candidate at The University of Texas Health Science C e n t e r a t San Antonio (UTHSCSA). In March 2 012, a fter raising complaints o f alleged discrimination and h arassment to t he D e a n of the Graduate School o f B iomedical Sciences, Pathria f iled an EEOC complaint. Subsequently Pathria brought Title VI and VII claims, and v arious s tate law claims, against UTHSCSA. He amended his complaint four times befo r e the U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 20, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-50068 Document: 00512282365 Page: 1 Date Filed: 06/20/2013No. 13-50068

district court dismissed all of his c laims except his claim fo r n a t i o n al origin discrimination in violation of Title VI and his claim for breach of contract. Pathria filed a fifth amended comp l a int as to t hese claims, which UTHSCSA moved t o dismiss. In January 2013, t he di strict c ourt grante d UTHSCSA’s motion to dismiss Pat h ria’s fifth amended complaint. As to P athria’s Title VI cl a i m , t h e d istrict court held that Pathria failed to state a claim, finding in particular that he failed to plead facts t hat create a reasonable i n f e rence of discriminatory i ntent. The d istrict court further hel d that U THSCSA had

sove r e i g n i mmunity from Pathria’s breach of c o ntract claim, and in the alternative, that Pathria had failed to state a claim for which r elief could be granted. Pathria timely appealed. Though Pathria raises a host of arguments on appeal, the only issue properly before us is whether h is fifth amended c omplaint contains factual allegations sufficient for his Title VI claim to survive a 12(b)(6) motion. 1 We review a dismissal under Rule 12(b)(6) de n o v o , a c c e pting all wellp l e a d e d facts a s true and viewing them in the light most favorable to t h e plaintiff. See, e .g. , Dorsey v. Portfolio Equities, Inc. , 540 F.3d 3 33, 3 38 (5th Cir. 2008). To surviv e a 12(b)(6) motion to dismiss, a plaintiff must plead “enough f a c t s t o state a claim t o relief that is plausible on its face.” Bell Atl. Corp. v . Twombly , 550 U.S. 5 44, 570 (2007). A claim is facially plausible w hen the pleaded f

actual content “allows the court to draw the reasonable inference that the defendant is liable for the misc o n d u c t a l l e ged.” Ashcroft v . Iqbal , 556 U.S. 662, 678 (2009) (citing T wombly , 550 U.S. at 556).

1 Pathria d id not rais e is s ues as to his breach- of

- contract claim in his op ening brief

. Thus , this claim is w aiv e d

. Se e T h a rl i ng v . Ci t

y of P ort La v a ca , 329 F. 3d 422, 430 ( 5th Cir. 2003)

. I n ad d ition, the d is trict court d is m is s ed Pathria’s Title VII and Texas Labor Cod e claim s i n a r u l i ng that P athria d id not ap p eal, and Pathria has f ailed to argue w hy thes e claim s s houldbe reins tated

. Accord ingly, thes e claim s are als o w aived

. See i d. 2 Case: 13-50068 Document: 00512282365 Page: 2 Date Filed: 06/20/2013No. 13-50068

To prevail on a claim for r eli e f under Title VI, a private litigant must p r o v e : (1) that the d efendant engaged in i ntentional discrimination based on race, color, or national origin; and (2) t h at the defendant received federal financial assistance. 42 U .S.C. § 2000d; s ee also Alexander v. Sandoval , 532 U.S. 275, 280 (2001) (acknowledging a p rivate right of a ction under certain sections of Title VI). Pathria’s subjective beliefs d o not c reate an inference of intentional discrimination. See, e.g. , Byers v. Dallas Morning News, Inc. , 209 F.3d 419, 427 (5th Cir. 2000). Rather, for Pathria’s Title VI claim to survive th e 12(b)(6) motion, the facts Pathria alleged in his fifth amended complaint must allow u s

r e a s o n ably to infer that the a lleged discrimination was motivated by his na t i o n a l origin. See Ricci v. DeStefano , 5 5 7 U

. S

. 557, 577 ( 2009). As discussed below, Pathria alleged t hat the chairperson of his dissertation supervisory committee, Dr. Ph i l i p Serwer, a nd t he committee as a whole, intentionally discriminated against him based on his national origin. Neither allegation has merit. Pathria’s main allegation is that Serwer used the fact that Pathr i a was from India to coerce him i nto conducting additional la b o r atory work. Pathria contends that Serwer leveraged P athria’s nationality to f orce compliance with his demands by threatening Pathri a w ith an u n satisfactory grade that would h a v e r e sulted in the cancellation o f his visa, and accordingly would h a v e required him to r e t u r n to India. Yet, Pathria’s fifth amended complaint states

no factual allegations that, if true, would create a reasonable inference that Serwe r ’ s c onduct w as motivated by Pathria’s n ational origin. Serwer’s alleged statement—that he “could get [Pathria’s] visa cancelled... a nd s end [Pathria] “back to India”—if construed to create a n inference of discriminatory animus, would suggest an animus based upon Pathria’s imm i gr a t i o n s t a t u s o r c i t izenship and visa vulnerability, not h i s n a t i o n a l o ri gin. See, e.g. , Guimaraes v . SuperValu, I n c . , 6 7 4 F.3d 962, 9 73 (8th Cir. 2012). W e have held that citizenship and national origin should not b e conflated, and that citizenship is not a protected

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category under Title VI. See Bennet t v . T o t al Minatome Corp. , 138 F.3d 1053, 1059-60 (5th Cir. 1998). 2 Pathria further alleges that his disser t a tion supervising c o mmittee discrimi n a t e d against him based on his national o rigin. However, he fails to plead any facts suggesting that committee members treated h i m differently based on his national origin. Pat h r i a advances o nly his subjective b elief that committee memb e r s f

a iled to exercise independent judgment when making their decisions, deferring to Serwer’s wishes; this bare allegation does not m eet t he Twombly standard. See Byers , 209 F.3d at 427. Because Pathria’s complaint lacks sufficient factual al l e g a tions to demonstrate that Serwer or t he disserta t ion committee discriminated against Pathria based on his n ational origin, we AFFIRM the d i s trict court’s order granting UTHSCSA’s motion to dismiss.

2 Although Pathria argues that Bennett does n o t ap p ly becaus e it involved the ap p lication of

a treaty, this argum ent f ails , as Bennett ’s d is tinction betw een citizens hip and national origin d id not rely on the treaty’s exis tence.

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