Rakhshandeh v. TX Tech Univ ( 2023 )

Case: 23-10201 Document: 00516878769 Page: 1 Date Filed: 08/30/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10201
Summary Calendar FILED
____________ August 30, 2023
Lyle W. Cayce
Anoosh Rakhshandeh, Clerk
Plaintiff—Appellant,
versus
Texas Tech University,
Defendant—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:20-CV-110
______________________________
Before Elrod, Oldham and Wilson, Circuit Judges.
Per Curiam: *
Anoosh Rakhshandeh appeals the district court’s grant of summary
judgment on his Title VII claim based on national origin and religion. Because
the district court did not err when it determined that Rahkshandeh was not
denied tenure, we AFFIRM.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-10201
I
Texas Tech University hired Rakhshandeh as a tenure-track assistant
professor for its animal science department in 2013. Promotion to a professor
with tenure is an eight-step process at Texas Tech, culminating in a
recommendation for or against tenure from the President of the university to
the board of trustees. Only the President or board of trustees may grant or
deny tenure. Every other layer of review gives either a recommendation for
or against granting tenure and moves to the next step.
In 2018, his final year of eligibility, Rakhshandeh applied for tenure.
The first layer of review, a departmental vote of professors with tenure, gave
a unanimous recommendation against granting tenure. The second layer of
review was a recommendation from the department head, Dr. Michael Orth,
who also recommended against granting tenure. Rakhshandeh met with Orth
who told him that he spoke with the dean of the college and the provost, and
both said his tenure application had no chance of success at the higher levels
of review; Rakhshandeh subsequently confirmed this with both officials.
Worrying about the prospect of a tenure denial in his file, Rakhshandeh, with
Orth’s encouragement, withdrew his application for tenure. Because 2018
was his final year of eligibility, Rakhshandeh was not able to apply for tenure
again and was given a terminal appointment, ending his career at Texas Tech
in May 2020.
Rakhshandeh sued Texas Tech, alleging Title VII violations based on
national origin and religion. Texas Tech moved to dismiss for lack of
jurisdiction alleging standing and ripeness issues and failure to state a claim,
on the ground that an adverse employment action had not occurred. The
district court denied the first motion because the jurisdictional argument was
intertwined with the merits of the claim but requested supplemental briefing
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on the second question and converted it into a motion for summary
judgment. The district court granted Texas Tech’s motion for summary
judgment and Rahkshandeh timely appealed.
II
“We review a grant of summary judgment de novo[.]” Tex. Ent.
Ass’n, Inc. v. Hegar, 10 F.4th 495, 504 (5th Cir. 2021) (quoting Certain
Underwriters at Lloyd’s, London v. Axon Pressure Prods. Inc., 951 F.3d 248, 255
(5th Cir. 2020)). Summary judgment is proper “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). “We view the
evidence in the light most favorable to the nonmovant and draw all reasonable
inferences in that party's favor.” King v. U.S. Bank, N.A., 853 F. App’x 971,
973 (5th Cir. 2021).
In tenure denial cases, the plaintiff must state a prima facie case of
discrimination by showing: (1) he belongs to a protected group; (2) he was
qualified for tenure; and (3) he was denied tenure in circumstances
permitting an inference of discrimination. Tanik v. S. Methodist Univ., 116
F.3d 775, 776 (5th Cir. 1997). The district court determined that
Rakhshandeh was not denied tenure because he voluntarily withdrew his
application before a final decision and therefore failed to state a prima facie
case of discrimination, even if the other two elements were met. We agree. It
is true a final decision denying tenure may be an adverse employment action.
Id. (noting that denial of tenure decisions are not exempt from judicial
scrutiny). However, a withdrawal of a tenure application before it can be
denied is not an adverse employment action. Okruhlik v. Univ. of Arkansas,
395 F.3d 872, 879 (8th Cir. 2005) (holding that intermediate
recommendations do not constitute adverse employment actions for
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purposes of Title VII denial of tenure claims). Accordingly, the district court
correctly determined that Rakhshandeh was not denied tenure.
Rakhshandeh also argues for the first time on appeal that because Orth
encouraged Rakhshandeh to withdraw his application for tenure, he was
constructively discharged. We have recognized constructive discharge when
conditions become so intolerable a reasonable employee would feel
compelled to resign. Perret v. Nationwide Mut. Ins. Co., 770 F.3d 336, 338 (5th
Cir. 2014) (quoting Aryain v. Wal–Mart Stores Texas LP, 534 F.3d 473, 480
(5th Cir. 2008)). We also recognize constructive discharge when the
employee receives an ultimatum to “quit or be fired.” Id. We decline to
address whether Rakhshandeh’s withdrawal of his tenure application would
arise to the level of constructive discharge because this issue was not properly
presented to the district court. Arguments not presented to the district court
are forfeited. Garcia v. Orta, 47 F.4th 343, 349 (5th Cir. 2022). 1
The district court correctly determined that Rahkshandeh was not
denied tenure. Accordingly, the district court’s grant of summary judgment
is AFFIRMED.
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1 The Fifth Circuit recognizes two exceptions when an argument not presented to
the district court may be argued before the court of appeals. Rollins v. Home Depot USA, 8
F.4th 393, 398 (5th Cir. 2021). They are: (1) if a court’s subject-matter jurisdiction is
implicated; and (2) if the question is one of pure law and not answering it would be unjust.
Id. Here, the court’s subject matter jurisdiction is not in question as the issue before us is a
federal question. In addition, this question is not purely one of law because whether the
recommendation to withdraw a tenure application is a constructive discharge involves
questions of fact. As no exception to the general rule applies, we decline to address the issue
of constructive discharge.
4