The opinion
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
*
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opinion should not be published and is not precedent except under the limited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.
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.
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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 non-
salary “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
2
Dr. Pradhan does not appeal his conversion claim against TAMU itself.
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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.
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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.
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