stating “the alleged jokes and comments about [plaintiff’s] accent were not related to the tenure decision at issue, so they are not direct evidence of discrimination,” where the plaintiff, a native South Korean, brought race and national origin discrimination claims under Title VII
How later courts described this case
- stating “the alleged jokes and comments about [plaintiff’s] accent were not related to the tenure decision at issue, so they are not direct evidence of discrimination,” where the plaintiff, a native South Korean, brought race and national origin discrimination claims under Title VII
- reviewing “every level” of plaintiff’s tenure review process
- Title VII race and national origin discrimination
Written by the judges who cited it.
The opinion
Case: 14-60129 Document: 00512838904 Page: 1 Date Filed: 11/17/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60129 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
November 17, 2014
Lyle W. Cayce
Clerk
DR. YUL CHU,
Plaintiff−Appellant
versus
MISSISSIPPI STATE UNIVERSITY;
BOARD OF TRUSTEES, INSTITUTIONS OF HIGHER LEARNING;
DR. ROBERT H. "DOC" FOGELSONG, Individually and Officially;
DR. D. E. MAGEE, JR., Individually and Officially;
DR. THOMAS C. MEREDITH, Commissioner, Individually and Officially,
Defendants−Appellees
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:08-CV-232
Before SMITH, WIENER, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 14-60129
Yul Chu appeals a summary judgment dismissing his claims of race-
based employment discrimination, constitutional violations, and breach of con-
tract. On appeal, he challenges only part of the judgment: (1) the dismissal of
his Title VII claims against Mississippi State University (“MSU”) and the
Board of Trustees, Institutions of Higher Learning (the “Board”), and (2) the
dismissal of his 42 U.S.C. § 1983 claims against the individual defendants—
Robert “Doc” Fogelsong, D.E. Magee, Jr., and Thomas Meredith, personally
and in their official capacities 1—for due-process and equal-protection viola-
tions. Agreeing with the district court that Chu has failed to present sufficient
evidence of unlawful discrimination or to allege constitutional violations,
we affirm.
I.
A.
To receive tenure at MSU, a professor must both meet the university’s
eligibility requirements and pass its review process. Requirements to apply
for tenure are set out in the university’s policies and procedures: First, the
candidate must be in a tenure-track position. Second, he must complete a five-
to-six-year probationary period. Finally, he must demonstrate satisfactory
performance in teaching, research, and service and must excel in at least one
of those areas. For monitoring of his progress, he receives annual performance
reviews during the probationary period.
Once a candidate believes he is eligible, the candidate submits an appli-
cation and supporting documents for a multilayered review process. First, a
committee made up entirely of tenured members from his department reviews
1Fogelsong was president of MSU, Magee was trustee of the Board, and Meredith was
commissioner of the Board at the time Chu’s application for tenure was denied.
2
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No. 14-60129
the application and makes a recommendation for or against tenure. The can-
didate’s department head, the college’s tenure and promotion committee, and
the college’s dean then complete similar independent reviews and recommen-
dations. Next, the university’s provost looks at the respective reviews and
recommendations and in turn makes a recommendation to MSU’s president,
who then decides whether to recommend tenure to the Board.
If the president recommends tenure, the issue is submitted to the Board
for approval. If the president declines to recommend tenure, the candidate can
appeal to the tenure and promotion committee and the provost for investiga-
tion, and the application will be reevaluated and submitted to the president
again for reconsideration. If the president again declines to recommend ten-
ure, the candidate may appeal directly to the Board, which decides whether to
consider the appeal. Once the university’s tenure denial is final, the candidate
receives a nonrenewable, one-year contract that ends his employment at MSU.
B.
MSU and the Board hired Chu, a native of South Korea, in 2001 as a
tenure-track assistant professor in the electrical and computer engineering
department. After working under a series of one-year contracts, he submitted
a tenure application in 2006. Following university procedures, the application
was reviewed by a departmental committee, the head of Chu’s department, the
college’s tenure and promotion committee, the college dean, and the university
provost. Each recommended against granting tenure to Chu, and MSU’s presi-
dent declined to recommend Chu to the Board for tenure.
Chu appealed, and the tenure and promotion committee reconsidered the
application with further investigation. The committee did not change its
recommendation, and the provost and president again declined to recommend
Chu, who appealed directly to the Board, which declined to hold a hearing on
3
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the application. After the denial, Chu signed a final one-year contract for the
2007–2008 school year.
Once he received a right-to-sue letter from the EEOC, Chu sued MSU,
the Board, Fogelsong, Magee, and Meredith, personally and officially, for
employment discrimination under Title VII. He also sued for constitutional
violations under § 1983 and for breach of contract under state law.
Defendants moved to dismiss all of Chu’s claims except for the Title VII
claim against MSU and the Board. The district court converted the motion to
one for summary judgment and ruled for the defendants, dismissing Chu’s
other claims in October 2012. After further discovery, MSU and the Board
moved for summary judgment on the remaining Title VII claims. The court
granted summary judgment and dismissed those claims in January 2014.
Chu filed a notice of appeal as to both orders, but his subsequent briefing
challenges only two aspects of the dismissals. First, he appeals the January
2014 order dismissing his Title VII claims against MSU and the Board. Sec-
ond, he appeals the dismissal of his § 1983 claims against Fogelsong, Magee,
and Meredith personally and in their official capacities for violations of due
process and equal protection. As discussed below, Chu waived any appeal of
the Title VII claims against the individual defendants, the § 1983 claims
against MSU and the Board, and the breach-of-contract claims.
II.
We review a summary judgment de novo. Autry v. Fort Bend Indep. Sch.
Dist., 704 F.3d 344, 346 (5th Cir. 2013). Summary judgment is appropriate
where the record shows that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” 2 Where facts
2 FED. R. CIV. P. 56(a); see also Vuncannon v. United States, 711 F.3d 536, 538 (5th
4
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No. 14-60129
are disputed, this court must view the facts in the light most favorable to the
nonmovant, and we draw reasonable inferences in the nonmovant’s favor. See
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007). But a party opposing
summary judgment may not manufacture a genuine dispute of fact through
conclusory statements, unsupported allegations, or a mere iota of evidence. Id.
III.
Title VII makes it unlawful for a covered employer “to fail or refuse to
hire or 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)(1). Tenure falls within the ambit of employ-
ment decisions covered by Title VII. Tanik v. S. Methodist Univ., 116 F.3d 775,
776 (5th Cir. 1997) (per curiam).
A case under Title VII can be proven either by direct evidence or by
circumstantial evidence under the McDonnell Douglas framework. 3 In his
pleadings and briefs, Chu contends that there is both direct and circumstantial
evidence of discrimination on the basis of race and national origin.
A.
Where there is direct evidence of a discriminatory basis or motivation for
an adverse employment action, the McDonnell Douglas framework does not
apply. 4 “Direct evidence is evidence which, if believed, proves the fact without
Cir. 2013).
3Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000); McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005); see also Trans
4
World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985).
5
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inference or presumption.” Jones, 427 F.3d at 992. It includes “any statement
or document which shows on its face that an improper criterion served as a
basis—not necessarily the sole basis, but a basis—for the adverse employment
action.” 5 If a plaintiff provides direct evidence, the burden shifts to the
employer “to prove by a preponderance of the evidence that the same decision
would have been made regardless of the discriminatory animus.” Id.
As direct evidence of discrimination, Chu points to his deposition testi-
mony that members of his department mocked his accent at different times.
For workplace comments to provide sufficient direct evidence of discrimina-
tion, they must be “1) [related to the plaintiff’s protected status]; 2) proximate
in time to the [adverse employment action]; 3) made by an individual with
authority over the employment decision at issue; and 4) related to the employ-
ment decision at issue.” Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir.
1996). 6 Taking Chu’s testimony as true, it does not present direct evidence of
intentional discrimination.
We assume arguendo that any derisive comments or jokes about Chu’s
accent were related to his race or national origin. The evidence fails to meet
the other three requirements for direct evidence. The comments at issue were
made between 2002 and 2003, but Chu did not apply for tenure at MSU until
2006. Such temporal distance attenuates the connection between the actions
and the tenure decision.
Nor were the comments made by individuals with authority over the
tenure decision. Though it is true that members of his department sat on one
5 Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003), abrogated on
other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
6Although Brown was abrogated by Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133 (2000), its test still applies where comments are presented as direct evidence of
discrimination. Laxton v. Gap, 333 F.3d 572, 583 n.4 (5th Cir. 2003).
6
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committee that made a recommendation on tenure, the tenure-approval pro-
cess consisted of multiple levels of review and avenues for appeal. The faculty
members alleged to have made these comments did not make the final decision
as to Chu’s tenure, and any influence over the decision was limited by the com-
mittee and review structures. Finally, the alleged jokes and comments about
his accent were not related to the tenure decision at issue, so they are not direct
evidence of discrimination.
B.
In the absence of direct evidence of discrimination, we apply the modified
McDonnell Douglas burden-shifting framework, under which
the plaintiff must first demonstrate a prima facie case of discrimina-
tion; the defendant then must articulate a legitimate, non-discrimina-
tory reason for its [adverse] decision . . .; and, if the defendant meets its
burden of production, the plaintiff must then offer sufficient evidence
to create a genuine issue of material fact that either (1) the employer's
reason is a pretext or (2) that the employer's reason, while true, is only
one of the reasons for its conduct, and another “motivating factor” is the
plaintiff's protected characteristic. [7]
University tenure decisions represent a distinct kind of employment action,
involving special considerations. “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 circum-
stances permitting an [inference] of discrimination.” 8 Evidence that supports
7 Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411-12 (5th Cir.
2007). Chu claims that the McDonnell Douglas framework does not apply to his mixed-
motives claim under Title VII, relying on Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003).
That is incorrect. This circuit has modified the McDonnell Douglas framework’s third step
to cover mixed-motives cases. Keelan v. Majesco Software, Inc., 407 F.3d 332, 340–41 (5th
Cir. 2005).
8 Tanik, 116 F.3d at 775−76; see also Krystek v. Univ. of S. Miss., 164 F.3d 251, 256
(5th Cir. 1999).
7
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a prima facie case includes departures from university procedures, conven-
tional evidence of bias against the plaintiff, and evidence that “the plaintiff is
found to be qualified for tenure by some significant portion of the departmental
faculty, referrants [sic, references?] or other scholars in the particular field.” 9
No one disputes that Chu is a member of a protected group under
Title VII. Rather, MSU and the Board contend that he was not qualified for
tenure because he did not perform satisfactorily in research and did not excel
in any of the areas considered for tenure decisions. Chu responds that he was
qualified for tenure, and, as evidence of discrimination, he points to a white
professor who was less qualified than he and received tenure. He also avers
that MSU deviated from its standard procedures and failed to investigate his
claims of discrimination, which supports an inference of discrimination.
As discussed above, in addition to other requirements, a tenure candi-
date at MSU must sufficiently perform in the areas of teaching, research, and
service and must excel in one of those areas. Thus, the first consideration is
whether Chu met the necessary prerequisites for tenure. The record supports
MSU’s argument and the district court’s conclusion that he did not.
At every level, those who reviewed Chu’s application recommended
against granting tenure, finding that he had failed to complete sufficient
research as a professor. In reaching that conclusion, the decisionmakers
looked at a number of factors related to research, including the number of
articles Chu published, the quality and prestige of the publishing journals, and
the amount of outside research funding he secured.
Chu failed to publish any articles during his first five years at MSU.
When he applied for tenure, he had published only three, with several others
accepted for publication, but the publishing journals were not highly regarded.
9 Tanik, 116 F.3d at 776 (internal quotation marks omitted).
8
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Finally, Chu had secured only $26,000 in research funding, which was far
below average for his department. Moreover, those deficiencies in Chu’s
research were pointed out in his annual performance reviews. 10 Based on this
and other evidence, the tenure reviewers determined that Chu did not meet
the research requirements for tenure and did not excel in any of the three
relevant areas.
As evidence that the tenure decision was discriminatory, Chu claims that
MSU granted tenure to a white professor—J.W. Bruce—who was less qualified
than he was. The district court addressed that argument, and after examining
the relevant qualifications of each, we agree with the court that Bruce was
better qualified for tenure and exceeded Chu in each of the three relevant
areas. For example, Bruce received a prestigious teaching award, had pub-
lished more articles than had Chu and in higher-ranked journals, and had
secured nearly $500,000 in research funding.
Finally, Chu argues that it is evidence of discrimination that MSU failed
to follow its own procedures in investigating his claims of discriminatory treat-
ment. In his district-court pleadings and his briefs, he alleges that MSU did
not investigate his complaints. But the record reflects that the university did
in fact review them. In addressing his appeal of the initial tenure denial, the
university’s promotion and tenure committee investigated Chu’s tenure consid-
eration and unanimously concluded that it was not prejudiced or arbitrary.
There was no requirement in the university’s procedures that the evaluation
process pause if a candidate alleged discrimination, and there is no evidence
that the university intentionally avoided investigating claims of racial
10 Each of Chu’s performance reviews from 2001 to 2006 pointed to research as an area
in need of improvement, calling his progress toward tenure eligibility “unsatisfactory” and
noting in 2006, for example, that Chu’s “proposal output and research funding level continue
to fall short of requirements consistent with tenure or promotion.”
9
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No. 14-60129
discrimination.
In conclusion, we agree with the district court that Chu fails to make out
a prima facie case of discrimination under Title VII. We do not need to analyze
the McDonnell Douglas framework’s second and third steps, and we affirm
summary judgment on the Title VII claims.
IV.
Chu appeals the dismissal of his § 1983 claims against the individual
defendants—Fogelsong, Magee, and Meredith—based on qualified immunity
and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Chu does not take issue with the district court’s sovereign-immunity analysis,
so we do not consider it. Nor does he appeal the dismissal of his breach-of-
contract claims under § 1983 or his state-law claims. Accordingly, the only
remaining claims under § 1983 are for prospective injunctive relief against
Fogelsong, Magee, and Meredith in their official capacities and for damages in
their personal capacities.
Under § 1983, Chu seeks damages and prospective injunctive relief for
violations of equal protection and due process related to his employment and
tenure consideration. We review a dismissal under Rule 12(b)(6) de novo,
accepting all well-pleaded facts as true. 11 To avoid dismissal, “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” 12 In a case alleging constitutional
violations against state officials, “[i]f no constitutional right would have been
violated were the allegations established, there is no necessity for further
11Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949–50 (2009) (stating that conclusory allegations
do not meet the 12(b)(6) standard); Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007) (per
curiam).
12 Iqbal, 129 S.Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
10
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inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201
(2001). A § 1983 claim will fail unless it “rests on more than conclusions alone.”
Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc).
A.
Chu alleges that the individual defendants violated his equal-protection
rights by discriminating on the basis of race and failing to treat him similarly
to white faculty members. Claims under § 1983 for violation of equal protection
may be brought against individual officials, Fitzgerald v. Barnstable Sch.
Comm., 555 U.S. 246, 257 (2009), but to demonstrate intentional discrimina-
tion, Chu must allege sufficient facts to show that the officials “singled out a
particular group for disparate treatment and selected [their] course of action
at least in part for the purpose of causing its adverse effect on an identifiable
group,” Lavernia v. Lynaugh, 845 F.2d 493, 496 (5th Cir. 1988) (internal
quotation marks omitted).
We agree with the district court that Chu fails to state a claim that
Fogelsong, Magee, or Meredith violated his equal-protection rights. Chu’s com-
plaint is long on conclusions but short on facts, and his brief offers nothing to
explain how he is entitled to relief or how the district court erred in its analysis.
He merely states that the university discriminated against him and did not
discriminate against white faculty, but he fails to elaborate. There are no fac-
tual allegations to support that claim. Consequently, Chu has failed to state
an equal-protection claim upon which relief may be granted.
B.
Chu maintains that Fogelsong, Magee, and Meredith violated his due-
process rights by purposefully avoiding an investigation into his discrimination
complaints and by violating university rules and procedure. Regardless of
11
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whether Chu’s theory of relief under § 1983 relies on procedural or substantive
due process, he must allege that the individual defendants deprived him of
some constitutionally protected life, liberty, or property interest. See Gentilello
v. Rege, 627 F.3d 540, 544 (5th Cir. 2010).
Because no life interest is at issue, we first examine whether Chu prop-
erly alleges a deprived property interest. “To enjoy a property interest in
employment, an employee must have a legitimate claim of entitlement created
and defined by existing rules or understandings that stem from an indepen-
dent source such as state law.” Id. (internal quotation marks omitted). “Mis-
sissippi law is clear that neither state legislation nor state regulations create
a legitimate expectation of continued employment for a non-tenured faculty
member.” 13 So any property interest in continued employment must be found
in Chu’s terminal employment contract or other features of his employment.
As already discussed, Chu’s employment depended on a series of one-
year contracts, ending in a final contract after the university had denied him
tenure. But as the district court observed, his contract specifically stated that
it was nonrenewable, and so he could not expect continued employment based
on its terms or any of the previous contracts. 14 Nor does the faculty handbook
create a cognizable property interest. See Spuler v. Pickar, 958 F.2d 103, 107
(5th Cir. 1992). Chu provides no other basis to support a claim that he was
entitled to continued employment, 15 so he has failed to point to any constitu-
tionally protected property interest on which his § 1983 due-process claim can
be based.
13 Whiting v. Univ. of S. Miss., 451 F.3d 339, 344 (5th Cir. 2006) (examining
Mississippi state laws on university employment).
14See Markwell v. Culwell, 515 F.2d 1258, 1259 (5th Cir. 1975) (per curiam); Ray v.
Nash, 438 F. App’x 332, 335 (5th Cir. 2011).
15The absence other guarantees for nontenured faculty distinguishes this case from
Samuel v. Holmes, 138 F.3d 173 (5th Cir. 1998), on which Chu relies.
12
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Regarding whether Chu has sufficiently alleged a constitutionally pro-
tected liberty interest, state officials who terminate a public employee violate
that employee’s liberty interest where the termination falsely stigmatizes and
harms the employee. See Arrington v. Cnty. of Dallas, 970 F.2d 1441, 1447
(5th Cir. 1992). So, for a public employee to succeed on a § 1983 claim for
deprivation of a liberty interest, he must show
(1) that [he] was discharged; (2) that stigmatizing charges were made
against [him] in connection with the discharge; (3) that the charges
were false; (4) that [he] was not provided notice or an opportunity to be
heard prior to [his] discharge; (5) that the charges were made public;
(6) that [he] requested a hearing to clear [his] name; and (7) that the
employer refused [his] request for a hearing.
Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir. 2000). We agree with
the district court that there is nothing in Chu’s complaint or the record that
avers these elements, and he presents no constitutionally protected liberty
interest for his § 1983 claims.
Chu has failed to state claims under § 1983 upon which relief may be
granted. He has not alleged sufficient facts showing that Fogelsong, Magee, or
Meredith purposefully singled him out for disparate treatment based on race,
nor has he shown that any of the defendants deprived him of a constitutionally
protected liberty or property interest. As a result, we do not need to reach the
qualified-immunity issues related to this suit, and we affirm the dismissal of
these claims under Rule 12(b)(6).
V.
Chu has failed to raise or adequately brief the other claims and issues. 16
The remaining matters—his Title VII claims against Fogelsong, Magee, and
16See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (failure to raise
an issue on appeal constitutes waiver of that argument); see also FED. R. APP. P. 28(a)(9)(A);
13
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Meredith; the § 1983 claims against MSU and the Board; and the claims based
on breach of contract—are thus waived, and we need not consider the dismissal
of them.
The judgment is AFFIRMED.
United States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000) (stating that issues not suffi-
ciently briefed are waived).
14