Ibanez v. Texas A&M

Case: 23-40564 Document: 59-1 Page: 1 Date Filed: 10/08/2024

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

October 8, 2024

No. 23-40564 Lyle W. Cayce

____________ Clerk

Armando Ibanez,

Plaintiff—Appellant,

versus

Texas A&M University Kingsville,

Defendant—Appellee.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:21-CV-249

______________________________

Before King, Stewart, and Higginson, Circuit Judges.

King, Circuit Judge:

After being denied tenure and a promotion to associate professor,

Armando P. Ibanez, a Mexican-American male, sued his former employer,

Texas A&M University–Kingsville, alleging employment discrimination on

the basis of race and national origin under Title VII of the Civil Rights Act of

1964. The district court granted Texas A&M’s motion for summary

judgment and dismissed Ibanez’s claims. We AFFIRM.

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I.

A.

Plaintiff-Appellant Armando P. Ibanez is a Mexican-American male

who was employed by Defendant-Appellee Texas A&M University–

Kingsville (“TAMUK”). TAMUK hired Ibanez in the fall of 2014 to serve

as an Assistant Professor of Communications/Radio-Television-Film—a

tenure-track position. Ibanez’s position was in TAMUK’s Department of

Art, Communications, and Theater, part of the Humanities Division within

the College of Arts and Sciences.

Under TAMUK rules, as a tenure-track professor, Ibanez “had five

years to prepare to apply for tenure and promotion to associate professor.”

At the end of those five years, Ibanez would be “simultaneously evaluated

for both tenure and promotion to associate professor.” 1 To qualify for tenure

and promotion, Ibanez was required to meet certain “minimum

requirements” set by TAMUK. One of those “minimum requirements” was

the creation or completion of “a minimum of two . . . refereed publications

or juried creative activities.” TAMUK permitted “[n]o substitutions, other

than patents” for this requirement.

Additionally, meeting the minimum requirements for scholarly

activity did not guarantee promotion or tenure, and an individual college’s

written guidelines could exceed university minimums. As such, the

Department of Art, Communications, and Theatre “also required a

minimum of two scholarly or creative works in a secondary category of

scholarship.”

_____________________

1

The criteria for tenure and promotion to associate professor were identical.

2

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During Ibanez’s employment with TAMUK, Ibanez produced an

extensive number of productions, performances, and other creative works.

These included, inter alia, five short films, such as South Texas Gentle Men of

Steel—Los Padres (“Men of Steel”), seven poems, six narrative and

documentary films, and two screenplays. In addition, Ibanez acted as Festival

Director for the Blazing Sun Independent Film Shorts Festival and served as

the faculty advisor for the TAMUK Film Society. Critically, however, the

only work that Ibanez labels as “juried” in the summary judgment record is

Men of Steel.

Ibanez submitted his application for tenure and promotion in

December 2019. Applications for tenure and promotion to associate

professor—including Ibanez’s application—were evaluated through the

following multi-level process:

1. First, a committee comprised of the applicant’s tenured department

faculty reviews the applicant’s submitted portfolio and issues a

recommendation.

2. Second, the department chair reviews the portfolio and issues a

recommendation.

3. Third, a committee comprised of tenured faculty from each

department within the applicant’s college reviews the portfolio and

issues a recommendation.

4. Fourth, the dean of the applicant’s college reviews the portfolio and

issues a recommendation.

5. Fifth, the provost reviews the portfolio and issues a recommendation.

6. If the provost issues a negative recommendation, the applicant can

appeal. If the applicant appeals, an advisory committee first performs

an initial review of the applicant’s arguments and decides whether full

consideration of the merits is warranted. The advisory committee

does not determine the merits of the appeal, nor does it issue any

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recommendation regarding whether the applicant should be tenured

and promoted.

7. If the advisory committee agrees that the applicant’s appeal should

proceed, the appeal is split into two parts: a promotion appeals

committee considers whether the applicant should be promoted, and

a tenure appeals committee separately considers whether the

applicant should be tenured.

8. Finally, after each level of review is complete, and all appeals have

been exhausted, the university president reviews the portfolio and

provides a final decision on whether to recommend the applicant for

tenure and promotion.

Starting at the first level, Ibanez’s departmental committee voted in

favor of recommending him for tenure and promotion. However, at the

second through fifth levels of review, the department chair, the college

committee, the college dean, and the provost voted against recommending

Ibanez for tenure and promotion. The department chair, college dean, and

provost all noted that they based their negative recommendations on the fact

that Ibanez failed to “meet the minimum requirements for scholarly or

creative works” because “he had completed only one juried film during his

five years as an assistant professor at TAMUK.” In addition, the college dean

and provost pointed to Ibanez having proffered only a single work, out of a

necessary two, that fell within the Department of Art, Communications, and

Theatre’s second required category.

Because the provost issued Ibanez a negative recommendation, Ibanez

appealed the decision to an advisory committee. The advisory committee, in

a 3-to-2 vote, concluded that Ibanez “established a prima facie case that the

[provost’s] decision was made in violation of the faculty member’s academic

freedom, for an illegal reason, or without adequate consideration of the

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faculty member’s record of professional achievement.” 2 Accordingly,

Ibanez’s portfolio was sent for review to both a promotion appeals committee

and a tenure appeals committee.

The two appeals committees split in their decisions: while the

promotion appeals committee voted against Ibanez, the tenure appeals

committee, in a 4-to-3 decision, voted in favor of Ibanez. A majority of the

tenure appeals committee found that Ibanez “met university, college, and

departmental expectations in teaching, scholarly activity, professional

growth, and service,” that Ibanez’s department “lacks formal guidelines for

evaluating scholarly work in the area of film production,” and that Ibanez “is

an asset to the university and has earned tenure and promotion.” 3

After Ibanez’s appeals concluded, the university president conducted

his review of Ibanez’s portfolio, Ibanez’s annual evaluations, and the

decisions from the preceding levels of review. He testified that he declined to

recommend Ibanez for tenure and promotion “[d]ue to Professor Ibanez’[s]

lack of scholarship, and in light of the negative recommendations of the

department chair, college committee, college dean, provost, and promotion

_____________________

2

The record does not contain the exact allegation(s) that Ibanez made against the

provost’s decision. However, in an email sent to the dean prior to the dean’s (and the

provost’s) review, Ibanez explained that the department chair and the college committee

incorrectly voted against his promotion and tenure because his “important

accomplishments” were improperly accounted for. One of the reasons Ibanez proffered for

this outcome was that “there [was] no criteria to evaluate work in filmmaking . . . at the

university.” Ibanez requested that “another party, knowledgeable in evaluating filmmaking

professors” evaluate his work and referred the dean to the criteria adopted by the

University Film and Video Association.

3

Also of note is that TAMUK’s Student Government Association supported

Ibanez’s promotion and tenure and signed a Senate Resolution in “Recognition & Support

[of Ibanez]” on November 18, 2020. The Hispanic Faculty Council similarly expressed

support for Ibanez.

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appeals committee in his case.” As a result, Ibanez was denied tenure and

promotion.

B.

On October 27, 2021, Ibanez sued TAMUK, alleging that the

university unlawfully denied him tenure and promotion based on his race and

national origin in violation of Title VII of the Civil Rights Act of 1964. 4 On

June 6, 2023, TAMUK moved for summary judgment, and Ibanez opposed

the motion on June 13, 2023.

In support of his opposition, Ibanez submitted a sworn declaration

and report from an expert witness, Dr. Laura Vazquez. Dr. Vazquez reviewed

Ibanez’s tenure and promotion case, and prepared “an opinion as an expert

in the field of evaluating the work of academic filmmakers.” In her report,

Dr. Vazquez supported Ibanez’s qualification for tenure, explaining that

many of his creative endeavors “received no credit in the tenure review

process,” and that he “was clearly judged by an inappropriate and thus unfair

standard that led to his loss of tenure and promotion.” When evaluated under

alternative “national and international standards of academic filmmakers,”

Ibanez’s achievements were “more than satisfactory.”

Ibanez also submitted a sworn declaration from another (now retired)

TAMUK professor, Santa C. Barraza. Barraza served as a professor in the

Department of Art, Communications, and Theatre, and she taught at

TAMUK for twenty-three years. In her declaration, Barraza stated that she

had “personal knowledge” of three “Euro-American” individuals who were

treated differently than Ibanez during the review of their tenure applications:

_____________________

4

Ibanez also originally brought a claim under 42 U.S.C. § 1981. In a decision that

Ibanez does not appeal, the district court dismissed that claim for lack of jurisdiction under

the Eleventh Amendment.

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Patrick Faherty, Corey Wayne Ranson, and Todd Lucas. Barraza explained

that for Faherty, TAMUK waived certain ordinary requirements for tenure

“in lieu of other scholarly substitutes identified in [an] alternative plan,” and

that for Ranson, TAMUK made an exception “to accommodate his tenure

process when he did not yet hold the required terminal degree of Master of

Fine Arts.” Barraza also noted that Lucas—a graphic design professor—was

promoted and given tenure even though Barraza, while acting as the Chair of

the Art Department, voted against his promotion because of his “limited

scholarship activities and accomplishments.” In sum, Barraza declared that

“TAMUK did not require the same academic standards of all candidates for

tenure and promotion,” and that Ibanez “was not treated equally by the

Departmental Chair and the Dean of College of Arts & Sciences as compared

to Euro-Americans in the department who obtained tenure and promotion.”

On August 29, 2023, the district court granted summary judgment in

favor of TAMUK and dismissed Ibanez’s discrimination claims. Ibanez

timely appealed.

II.

This court reviews grants of summary judgment de novo. Moore v.

LaSalle Mgmt. Co., 41 F.4th 493, 502 (5th Cir. 2022). Summary judgment is

appropriate “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). “A dispute as to a material fact is ‘genuine’ if the

evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th

Cir. 2005). In reviewing the record, “the court must draw all reasonable

inferences in favor of the nonmoving party, and it may not make credibility

determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 150 (2000).

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However, “a party cannot defeat summary judgment with conclusory

allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’”

Delta & Pine Land Co. v. Nationwide Agribusiness Ins., 530 F.3d 395, 399 (5th

Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994)). Instead, “the nonmovant must go beyond the pleadings and designate

specific facts showing that there is a genuine issue for trial.” Little, 37 F.3d at

1075. This court may grant summary judgment when “critical evidence is so

weak or tenuous on an essential fact that it could not support a judgment in

favor of the nonmovant.” Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th

Cir. 1993).

Finally, “[i]t is well settled in this Circuit that the scope of appellate

review on a summary judgment order is limited to matters presented to the

district court.” Keelan v. Majesco Software, Inc., 407 F.3d 332, 339 (5th Cir.

2005). “If a party fails to assert a legal reason why summary judgment should

not be granted, that ground is waived and cannot be considered or raised on

appeal.” Id. at 339–40 (quoting Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir.

2002)). “However, an argument is not waived on appeal if the argument on

the issue before the district court was sufficient to permit the district court to

rule on it.” In re Liljeberg Enters., Inc., 304 F.3d 410, 428 n.29 (5th Cir. 2002).

III.

Under Title VII, it is unlawful for an employer “to discharge any

individual, or otherwise to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment, because

of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a). A plaintiff may prove a case under Title VII using either direct

evidence or circumstantial evidence. Russell v. McKinney Hosp. Venture, 235

F.3d 219, 222 (5th Cir. 2000). Absent direct evidence of discrimination, this

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court applies the burden shifting framework set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802–03 (1973).

Under this framework, the plaintiff bears the initial burden to establish

a prima facie case of discrimination. Watkins v. Tregre, 997 F.3d 275, 281 (5th

Cir. 2021). If successful, “the burden of production shifts to [the defendant]

to proffer a legitimate, nondiscriminatory reason for [its] action.” Id. If the

defendant meets that burden, “the presumption of discrimination

disappears,” and the plaintiff must produce substantial evidence indicating

that the defendant’s proffered reason is pretext for discrimination. Vaughn v.

Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011); see also Outley v. Luke &

Assocs., Inc., 840 F.3d 212, 216 (5th Cir. 2016).

“Tenure falls within the ambit of employment decisions covered by

Title VII.” Chu v. Miss. State Univ., 592 F. App’x 260, 263 (5th Cir. 2014)

(citing Tanik v. S. Methodist Univ., 116 F.3d 775, 776 (5th Cir. 1997)). “To

establish a prima facie case in the context of a denial of tenure, the plaintiff

must show that: (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, 116 F.3d at 775–76. Evidence that

supports a prima facie case includes “departures from procedural regularity,

conventional evidence of bias on the part of individuals involved, or that the

plaintiff is found to be qualified for tenure by some significant portion of the

departmental faculty, referrants or other scholars in the particular field.” Id.

(internal quotation omitted).

This court has noted that “[u]niversity tenure decisions represent a

distinct kind of employment action, involving special considerations.” Chu,

592 F. App’x at 265. For example, “tenure contracts require unusual

commitments as to time and collegial relationships, academic tenure

decisions are often non-competitive, tenure decisions are usually highly

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decentralized, the number of factors considered in tenure decisions is quite

extensive, and tenure decisions are a source of unusually great

disagreement.” Tanik, 116 F.3d at 776 (numbering omitted). As such, courts

have held that tenure decisions “are generally entitled to more deference

than employment decisions in other settings.” Thrash v. Miami Univ., 549 F.

App’x 511, 521 (6th Cir. 2014); see also Kumar v. Bd. of Trs., Univ. of Mass.,

774 F.2d 1, 12 (1st Cir. 1985) (Campbell, C.J., concurring); Adelman-Reyes v.

Saint Xavier Univ., 500 F.3d 662, 667 (7th Cir. 2007); Kobrin v. Univ. of

Minn., 121 F.3d 408, 414 (8th Cir. 1997).

Ibanez has not presented direct evidence of discrimination, so we

apply the McDonnell Douglas burden-shifting framework. The parties agree

that Ibanez is a member of a protected group. Thus, the remaining elements

of a prima facie case in dispute are whether Ibanez was: (1) qualified for

tenure, and (2) denied tenure under circumstances permitting an inference

of discrimination. See Tanik, 116 F.3d at 775–76.

A.

We begin by assessing whether Ibanez has established that he was

qualified for tenure. To determine whether a plaintiff is “qualified for

tenure,” courts examine a university’s “established . . . tenure

requirement[s].” Krystek v. Univ. of S. Miss., 164 F.3d 251, 257 (5th Cir.

1999); see also Chu, 592 F. App’x at 265. Here, a baseline requirement for

tenure at TAMUK was the completion of “a minimum of two . . . juried

creative activities.” Because Ibanez failed to show a genuine dispute of

material fact as to whether he met this prerequisite, his prima facie case fails.

While neither party explicitly defined “juried” in the record, both use

the term to refer to a process for evaluating and selecting creative work for

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presentation in some forum. 5 The parties agree that Ibanez completed one

juried work, the film Men of Steel. However, the record before the district

court is devoid of any evidence that Ibanez produced a second juried creative

activity. In fact, in Ibanez’s own exhibit containing a list of his creative

scholarship, the only work labeled as “juried” is Men of Steel.

On appeal, Ibanez cites “numerous examples” of works that he

contends are juried because they were selected for presentation. But nothing

in the record indicates that these works were selected for presentation. Even

assuming that all the works were selected, the record does not describe the

process by which those selections occurred—i.e., whether the selection

process was completely non-competitive and open to all who apply, or

instead involved some form of evaluation. On this record, Ibanez has not

demonstrated a genuine dispute of material fact as to whether he met

TAMUK’s baseline requirements for tenure.

Ibanez also asks this court to consider his qualifications using a

broader definition of “juried” that is based on his own interpretation of a

“Check-List for Promotion/Tenure” published on TAMUK’s website

(which is not part of the appellate record). In relevant part, the form reminds

professors to include “other juried activities/proceedings, such as exhibits,

performances or competitions.” Ibanez argues that the phrase “such as

exhibits, performances or competitions” modifies “juried

activities/proceedings,” meaning that any exhibit, performance, or

competition is a juried activity/proceeding.

_____________________

5

Consistent with this understanding of “juried,” Ibanez explained on appeal that

“[i]f an exhibit or performance is juried, the work is evaluated to see if it meets criteria to

be exhibited in a particular forum.”

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Even assuming the argument was not waived and judicial notice of the

TAMUK website is appropriate, Ibanez’s proposed interpretation is

untenable. A plain reading of the TAMUK checklist shows that the phrase

“such as exhibits, performances or competitions” is intended to provide

examples of “activities/proceedings” not “juried activities/proceedings.”

In other words, the checklist provides that professors should include “juried

exhibits,” “juried performances,” and “juried competitions.” A reading

otherwise would render the word “juried” superfluous. Moreover,

interpreting “juried” to include any “exhibit, performance, or competition”

would contradict Ibanez’s own arguments and evidence, which assume the

term indicates some degree of evaluation that is not present in all

exhibitions. 6

In the alternative, Ibanez contends that he presented sufficient

evidence that he was qualified for tenure because—regardless of whether he

met TAMUK’s baseline requirements—“some significant portion of the

departmental faculty, referrants or other scholars in the particular field”

found him qualified. See Tanik, 116 F.3d at 776 (internal quotation omitted).

Relying on Tanik, which itself adopted the Second Circuit’s reasoning in

Zahorik v. Cornell University, 729 F.2d 85 (2d Cir. 1984), Ibanez argues that

the only “opinions that matter” are those of people with “expertise—i.e.,

department faculty,” and that it was error for the district court “to give

_____________________

6

The University Film Video Association’s Policy Statement on the “Evaluation of

Creative Activities for Tenure and/or Promotion”—submitted in support of Ibanez’s

opposition to summary judgment—indicates that not all exhibits are juried by explaining

that “exhibitions are often juried, and the selectivity of the process should be a

consideration in the review process.” (emphasis added). Ibanez also appears to concede

not all exhibits are juried by arguing that “[i]f an exhibit or performance is juried, the work

is evaluated to see if it meets criteria to be exhibited in a particular forum.” (emphasis

added).

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deferential weight to the opinions of non-department faculty or others that

are not scholars in the particular field.” Contrary to Ibanez’s arguments,

however, the recommendations of all tenure decisionmakers, not just

departmental faculty, are relevant to an inquiry into whether a professor is

qualified for tenure, and we do not read Zahorik to say otherwise. See Zahorik,

729 F.2d at 90 (reviewing the ultimate tenure recommendations of all

decisionmakers in its analysis); Chu, 592 F. App’x at 262, 265 (reviewing

“every level” of plaintiff’s tenure review process).

Applying this principle, Ibanez’s evidence is insufficient to raise a

genuine dispute of material fact regarding whether he was qualified for tenure

despite failing to meet baseline requirements. Ibanez points to the favorable

recommendations of the departmental committee, the tenure appeals

committee, and his expert witness. However, when compared to all others

voting against Ibanez’s tenure and promotion—including the department

chair, the college committee, the college dean, the provost, and the

promotion appeals committee—it is difficult to conclude that a “significant

portion of the departmental faculty, referrants or other scholars in the

particular field” found him qualified. See Tanik, 116 F.3d at 776 (internal

quotation omitted); Chu, 592 F. App’x at 265. This conclusion is supported

by the fact that Ibanez cannot show he meets the minimum requirements for

tenure, and Ibanez’s expert found him qualified through the use of national

and international standards and the TAMUK Handbook, not through the use

of TAMUK’s published and approved “University Level Minimum

Requirements for Tenure and Promotion.”

In summary, Ibanez has not presented sufficient evidence to create a

genuine dispute of material fact regarding whether he was qualified for

tenure. He cites only one example of a juried creative activity, and his

attempts to classify his other creative endeavors as juried lack evidentiary

support. Further, the favorable opinions of a select number of faculty

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members and his expert witness—when compared to the number of faculty

members who voted against Ibanez’s tenure—are insufficient to show that

Ibanez was otherwise qualified. As such, Ibanez failed to make a prima facie

showing of employment discrimination because he was not qualified for

tenure, and the district court did not err in granting summary judgment to

TAMUK.

B.

Even if Ibanez had shown he was qualified for tenure, his prima facie

case would still fail because he has not raised a genuine dispute of material

fact as to whether he was denied tenure under circumstances permitting an

inference of discrimination. On appeal, Ibanez presents numerous reasons

the circumstances surrounding his tenure decision suggest discrimination.

Assuming Ibanez preserved all arguments, we find they fall short of

producing an inference of discrimination. 7

First, Ibanez presents evidence that many individuals and groups

supported his tenure application. But TAMUK’s failure to give deference to

the opinions of departmental faculty, the tenure appeals committee, the

Hispanic Faculty Committee, the student government, and Ibanez’s expert

_____________________

7

While Ibanez correctly notes that he was not required to show a similarly situated

professor to prove discrimination, he also argues that the district court discounted evidence

that TAMUK allowed deviances from its policy for Euro-American professors. To the

extent that Ibanez does intend to argue that there is a similarly situated professor who was

treated differently than him, we note the argument also falls short. To establish a prima

facie case, “a plaintiff must show that he was treated less favorably than others ‘under

nearly identical circumstances.’” Willis v. Cleco Corp., 749 F.3d 314, 320 (5th Cir. 2014)

(quoting Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009)). The district court

adeptly explained that Ibanez failed to show how any other professor, including professors

Faherty, Ranson, and Lucas, was “similarly situated” to Ibanez. Ibanez does not explain

on appeal how the district court erred in its analysis on this issue, nor does he provide any

reasons as to why those professors were similarly situated. Thus, the district court did not

err.

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witness does not, itself, give rise to an inference of discrimination where

many other faculty groups—including the department chair, college

committee, college dean, provost, and promotion appeals committee—

recommended against Ibanez’s tenure and promotion. See Zahorik, 729 F.2d

at 95 (“Universities are free to vest authority in designated officials to

override departmental decisions, and the exercise of that authority is not

itself evidence of discrimination . . .”). Moreover, most of the individuals and

groups Ibanez highlights have no role in tenure and promotion decisions, or

came to their conclusions utilizing inapplicable national and international

standards.

Next, Ibanez argues that the department chair, dean, and provost did

not follow tenure and promotion policy. Specifically, Ibanez explains that

during his review, the department chair commented that “most of the work

for [Ibanez’s single juried] film had been completed before Ibanez began

working at TAMUK.” This comment, Ibanez argues, shows a violation of

TAMUK’s policy that scholarly work credited while employed will count

toward tenure. But crucially, as the department chair himself acknowledged,

TAMUK did follow policy and fully credited Ibanez for the juried film.

Ibanez also points to TAMUK’s failure to take certain steps as

evidence of discrimination. For example, he argues that TAMUK failed to

fully document its decision to deny him tenure, failed to produce TAMUK’s

tenure review policy, and failed to act upon the findings of the advisory

committee. 8 But it is difficult to see how TAMUK’s production of direct,

_____________________

8

Ibanez also argues that TAMUK failed to compare Ibanez to other qualified peers.

But as Ibanez himself states, under TAMUK guidelines, decisionmakers “may,” not

“must,” make comparisons to peers. Moreover, the guidelines state that comparisons are

made “in addition to” minimum expectations, not “in lieu of” minimum expectations. In

short, TAMUK decisionmakers were not required to compare Ibanez to his peers—

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sworn testimony by the very people who made Ibanez’s tenure decision—as

opposed to other types of documentation—produces an inference of

discrimination. And TAMUK did attach at least some documentary

corroboration to the decision-makers’ affidavits, such as the university

guidelines for tenure and promotion, and lists of college-specific mandatory

minimums for tenure and promotion. Lastly, a review of the record shows

that TAMUK took appropriate steps to investigate the advisory committee’s

findings. Pursuant to TAMUK’s policy, Ibanez’s appeal was submitted to a

tenure appeals committee and a promotion appeals committee for full,

independent review. The university president then considered all available

information—including the reviews of both committees—and came to a

decision. Contrary to Ibanez’s characterization, nothing suggests that

TAMUK disregarded the advisory committee’s report.

Finally, Ibanez argues that TAMUK failed to credit Ibanez’s work

focused on “important historical figures who made significant contributions

to racial justice,” and that he provided evidence of more general, systemic

discrimination at TAMUK. The record does not show that any of Ibanez’s

work was improperly discounted. Rather, the record shows Ibanez was

credited for Men of Steel, the only work he labeled as juried. And, as the

district court correctly noted, allegations of systemic racism within an

institution—without more—are insufficient to carry Ibanez’s burden to

show individualized discriminatory treatment. See Walther v. Lone Star Gas

Co., 977 F.2d 161, 162 (5th Cir. 1992) (“[P]roof of pretext, hence of

discriminatory intent, by statistics alone would be a challenging endeavor.”).

* * *

_____________________

especially after they concluded that Ibanez failed to meet minimum expectations—and

their failure to do so does not produce an inference of discrimination.

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Ibanez appears to have been a capable artist and well-respected

professor at TAMUK. Crediting Ibanez’s evidence, one may well believe

that TAMUK’s tenure requirements are too arbitrary or that Ibanez

deserved tenure based on his service to the university. But “[e]mployment

discrimination laws are not intended to be a vehicle for judicial second-

guessing of employment decisions.” See Hackett v. U.P.S., 736 F. App’x 444,

451 (5th Cir. 2018) (internal quotation omitted). Courts “are understandably

reluctant to review the merits of a tenure decision” because

“[d]etermination of the required level [of achievement required for tenure]

in a particular case is not a task for which judicial tribunals seem aptly

suited.” Zahorik, 729 F.2d at 93. Thus, the dispositive question is whether

Ibanez has presented sufficient evidence that his race or national origin was

the reason for the failure to promote. See Travis, 122 F.3d at 264. He has not.

In conclusion, Ibanez simply fails to point to any record evidence

indicating that race and national origin factored into TAMUK’s decision to

deny Ibanez tenure and a promotion, and none of Ibanez’s arguments to the

contrary show otherwise. Because Ibanez failed to create a genuine dispute

of fact as to whether he was denied tenure under circumstances giving rise to

an inference of discrimination, he failed to make a prima facie case of

employment discrimination. Therefore, the district court correctly granted

summary judgment to TAMUK.

IV.

Finding no reversible error in the district court’s proceedings, we

AFFIRM.

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