United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal Chief United States District Judge
Saravanan Shanmugavelandy, representing himself, has sued the
University of Texas M.D. Anderson Cancer Center, alleging
that the M.D. Anderson Cancer Center discriminated against
him based on his national origin (Asian Indian) and his sex
(male) by denying him a promotion; retaliated against him for
asserting rights under Title VII of the Civil Rights Act; and
harassed him severely enough to create a hostile work
M.D. Anderson Cancer Center has moved to dismiss the amended
complaint, arguing that sovereign immunity bars
Shanmugavelandy's claims and that he has not alleged
enough facts to state a claim. Shanmugavelandy has responded.
(Docket Entry Nos. 52, 56). The M.D. Anderson Cancer Center
and Shanmugavelandy filed supplemental briefs, as permitted
by the court. (Docket Entry Nos. 55, 60). After a careful
review of the complaint and amended complaint and the
documents attached to it, the motion and response, the
supplemental briefs, and the applicable law, the court grants
the motion to dismiss, with prejudice and without leave to
amend, because amendment would be futile. An order of
dismissal is separately entered. The reasons are explained
facts are drawn from the allegations of Shanmugavelandy's
initial and amended complaints, accepted as true for this
motion, and the Equal Employment Opportunity Commission
documents that are attached, referred to, and central to, the
complaints. Collins v. Morgan Stanley Dean Witter,
224 F.3d 496, 498-99 (5th Cir. 2000).
April 2015 to May 2017, Shanmugavelandy worked as a research
assistant for the M.D. Anderson Cancer Center, in Dr. Nikki
Millward's lab. Shanmugavelandy was the only Asian-Indian
male working as a research assistant in the lab. In 2016,
Shanmugavelandy asked for a promotion to obtain a stronger
basis for permanent resident status, based on his
“extraordinary ability.” 8 C.F.R. §
204.5(h). Shanmugavelandy also needed the promotion “to
increase [his] pay so that [he] could pay [his] [i]mmigration
attorney bill.” (Docket Entry No. 51 at 2).
Shanmugavelandy alleges that in May 2016, he “was
specifically told . . . that the department would be able to
promote [him].” (Docket Entry No. 1 at 10).
Shanmugavelandy also began applying for other positions at
the M.D. Anderson Cancer Center.
September 2016, Shanmugavelandy attended a department meeting
during which promotions were announced. Shanmugavelandy did
not receive a promotion, but a “Korean male Research
Assistant” and a “Taiwanese female Senior
Research Assistant” did. (Id. at 10).
Shanmugavelandy alleges that he had “more research
experience and journal publications” than these
individuals; he has published a paper with the Korean male;
and the M.D. Anderson Cancer Center did not promote any
Indian males. (Id.; Docket Entry No. 51 at 4). When
the Korean male was promoted, Shanmugavelandy “realized
that [he had] been played by everyone and misled.”
(Docket Entry No. 51 at 4).
met with Dr. Millward, the department chair, after the
department meeting. She told him that he could not receive
“a promotion or salary increase because she would not
be able to guarantee [his] job in the long run if [he were]
promoted or given a raise.” (Docket Entry No. 1 at 10).
She also told Shanmugavelandy that he could not receive a
“two level” promotion “because of
institutional policies.” (Docket Entry No. 51 at 2).
Shanmugavelandy alleges that these explanations did not make
sense because research assistants had been promoted in the
past, and because some unidentified person had told him in
May, three months earlier, that he would be promoted. (Docket
Entry No. 1 at 10).
the same time, Shanmugavelandy alleged, an administrator at
M.D. Anderson Cancer Center posted a scene from the movie
“Second Hand Lion” on a social-media website.
(Docket Entry No. 51 at 3). Shanmugavelandy “felt
offended” and thought that the clip had been directed
at him, apparently because it referred to
“outsider[s].” (Id.). In November 2017,
after Shanmugavelandy received an “excellent”
annual performance evaluation, he still did not receive a
promotion or salary increase. (Docket Entry No. 58-1 at 2-5;
Docket Entry No. 1 at 10). According to Shanmugavelandy, Dr.
Millward told him that he had “done an exceptional
job[, ] but there was no increment and/or promotion for [his]
performance.” (Docket Entry No. 60 at 2).
“began to suspect” that his applications for
other M.D. Anderson Cancer Center positions “had been
rejected for improper and discriminatory reasons.”
(Docket Entry No. 1 at 10). The M.D. Anderson Cancer Center
had stated that Shanmugavelandy was welcome to apply for
other positions, but his manager, Marcia Richard, and a Dr.
Bratip later told him to “stop applying for jobs with
[the] MD Anderson Cancer Center” and to “apply at
other institutions in Houston.” (Id.).
Shanmugavelandy's telephone discussions with M.D.
Anderson Cancer Center employees about his employment
applications were deleted while he was on vacation.
(Id.). Shanmugavelandy suspected that the M.D.
Anderson Cancer Center “intentionally blocked [his]
applications for other internal positions for discriminatory
alleges two other workplace incidents. The first concerned
his decision to park in a “short term / visitor”
spot. (Docket Entry No. 51 at 2). When Shanmugavelandy parked
his car there, “people from [his] department left
notices saying that this [is] not a parking lot, ” but
“other employe[e]s also had parked in that area . . .
for the whole day and they were not given any notice.”
(Id. at 2). The second incident was a meeting he had
with Dr. Le Roux and her husband, Dr. “Dawid”
Schellingerhout. (Id. at 3). It is unclear from the
initial and amended complaints whether Dr. Le Roux or Dr.
Schellingerhout worked in the same department or lab as
Shanmugavelandy. Shanmugavelandy alleges that these doctors
“targeted” him by asking: “whether [he] was
talking to one of [Dr. Le Roux's employees]”;
“if people in [Dr. Le Roux's] lab interact with
each other when she is not around”; and “other
questions which made [him] humiliated and scared.”
(Id.). Shanmugavelandy understood these questions as
“saying [he had] misbehaved” and as “two
person[s] from the same country talk[ing] about their
personal li[ves].” (Id.). Shanmugavelandy
“resigned” a “day or two” after this
meeting, in May 2017, because he “was scared, ”
and because of Dr. Le Roux's “unrelenting effort to
fix [him].” (Id.; Docket Entry No. 60 at 3).
According to Shanmugavelandy, this meeting “aggravated
the situation where [he] was already targeted and isolated in
the department.” (Docket Entry No. 51 at 3).
filed a charge of discrimination with the Equal Employment
Opportunity Commission in July 2017. (Id. at 9). He
alleged that the M.D. Anderson Cancer Center discriminated
against him based on his national origin and sex by denying
him a promotion. (Id.). He did not assert
retaliation or harassment claims, but his factual recitation
did allege that the M.D. Anderson Cancer Center had created a
hostile work environment. The EEOC dismissed
Shanmugavelandy's charge in May 2018, finding no evidence
of discrimination based on national origin or sex. (Docket
Entry No. 36-1).
August 2017, Shanmugavelandy sued the M.D. Anderson Cancer
Center in the Northern District of Illinois, asserting
discrimination, retaliation, and a hostile work environment.
(Docket Entry No. 1). He alleged that the M.D. Anderson
Cancer Center's actions caused him stress and weight
gain, contributing to a diabetes diagnosis. Shanmugavelandy
moved to have an attorney appointed, but the court denied the
motion, finding that he could afford an attorney based on his
salary. (Docket Entry Nos. 4, 13). The M.D. Anderson Cancer
Center moved to dismiss for lack of personal jurisdiction,
and Shanmugavelandy responded. (Docket Entry Nos. 16-17). The
court granted the motion and transferred the case to the
Southern District of Texas, where the M.D. Anderson Cancer
Center has its principal place of business. (Docket Entry No.
M.D. Anderson Cancer Center moved to dismiss for failure to
state a claim, Shanmugavelandy did not respond, and the court
dismissed his claims, without prejudice and with leave to
amend. (Docket Entry Nos. 36, 47). Shanmugavelandy filed an
amended complaint alleging additional facts. (Docket Entry
No. 51). The M.D. Anderson Cancer Center moved to dismiss the
amended complaint, arguing that sovereign immunity bars
Shanmugavelandy's claims and that Shanmugavelandy has not
made a prima facie showing of discrimination, a
hostile work environment, or retaliation. (Docket Entry No.
52). The M.D. Anderson Cancer Center filed a supplemental
brief, at the court's ...