IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 Center at San Antonio (UTHSCSA). In March 2012, after raising

complaints of alleged discrimination and harassment to the Dean of the

Graduate School of Biomedical Sciences, Pathria filed an EEOC complaint.

Subsequently Pathria brought Title VI and VII claims, and various state law

claims, against UTHSCSA. He amended his complaint four times before the

United States Court of Appeals

Fifth Circuit

F I L E D

June 20, 2013

Lyle W. Cayce

Clerk

* 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.

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district court dismissed all of his claims except his claim for national origin

discrimination in violation of Title VI and his claim for breach of contract.

Pathria filed a fifth amended complaint as to these claims, which UTHSCSA

moved to dismiss. In January 2013, the district court granted UTHSCSA’s

motion to dismiss Pathria’s fifth amended complaint. As to Pathria’s Title VI

claim, the district court held that Pathria failed to state a claim, finding in

particular that he failed to plead facts that create a reasonable inference of

discriminatory intent. The district court further held that UTHSCSA had

sovereign immunity from Pathria’s breach of contract claim, and in the

alternative, that Pathria had failed to state a claim for which relief could be

granted. Pathria timely appealed.

Though Pathria raises a host of arguments on appeal, the only issue

properly before us is whether his fifth amended complaint 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 novo, accepting all wellpleaded facts as true and viewing them in the light most favorable to the

plaintiff. See, e.g., Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.

2008). To survive a 12(b)(6) motion to dismiss, a plaintiff must plead “enough

facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the

pleaded factual content “allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Twombly, 550 U.S. at 556).

1 Pathria did not raise issues as to his breach-of-contract claim in his opening brief.

Thus, this claim is waived. See Tharling v. City of Port Lavaca, 329 F.3d 422, 430 (5th Cir.

2003). In addition, the district court dismissed Pathria’s Title VII and Texas Labor Code

claims in a ruling that Pathria did not appeal, and Pathria has failed to argue why these

claims should be reinstated. Accordingly, these claims are also waived. See id.

2

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To prevail on a claim for relief under Title VI, a private litigant must

prove: (1) that the defendant engaged in intentional discrimination based on

race, color, or national origin; and (2) that the defendant received federal

financial assistance. 42 U.S.C. § 2000d; see also Alexander v. Sandoval, 532 U.S.

275, 280 (2001) (acknowledging a private right of action under certain sections

of Title VI). Pathria’s subjective beliefs do not create 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 the 12(b)(6)

motion, the facts Pathria alleged in his fifth amended complaint must allow us

reasonably to infer that the alleged discrimination was motivated by his national

origin. See Ricci v. DeStefano, 557 U.S. 557, 577 (2009). As discussed below,

Pathria alleged that the chairperson of his dissertation supervisory committee,

Dr. Philip Serwer, and the 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 Pathria was

from India to coerce him into conducting additional laboratory work. Pathria

contends that Serwer leveraged Pathria’s nationality to force compliance with

his demands by threatening Pathria with an unsatisfactory grade that would

have resulted in the cancellation of his visa, and accordingly would have

required him to return to India. Yet, Pathria’s fifth amended complaint states

no factual allegations that, if true, would create a reasonable inference that

Serwer’s conduct was motivated by Pathria’s national origin. Serwer’s alleged

statement—that he “could get [Pathria’s] visa cancelled... and send [Pathria] 

“back to India”—if construed to create an inference of discriminatory animus,

would suggest an animus based upon Pathria’s immigrationstatus or citizenship

and visa vulnerability, not his national origin. See, e.g., Guimaraes v. SuperValu,

Inc., 674 F.3d 962, 973 (8th Cir. 2012). We have held that citizenship and

national origin should not be conflated, and that citizenship is not a protected

3

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category under Title VI. See Bennett v. Total Minatome Corp., 138 F.3d 1053,

1059-60 (5th Cir. 1998).2

Pathria further alleges that his dissertation supervising committee

discriminated against him based on his national origin. However, he fails to

plead any facts suggesting that committee members treated him differently

based on his national origin. Pathria advances only his subjective belief that

committee members failed to exercise independent judgment when making their

decisions, deferring to Serwer’s wishes; this bare allegation does not meet the

Twombly standard. See Byers, 209 F.3d at 427.

Because Pathria’s complaint lacks sufficient factual allegations to

demonstrate that Serwer or the dissertation committee discriminated against

Pathria based on his national origin, we AFFIRM the district court’s order

granting UTHSCSA’s motion to dismiss.

2 Although Pathria argues that Bennett does not apply because it involved the

application of a treaty, this argument fails, as Bennett’s distinction between citizenship and

national origin did not rely on the treaty’s existence.

4

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