Petition for Writ of Certiorari — Cardenas-Garcia v. Texas Tech University

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(i) Supreme Court, U.S.

No.04. 041239 MAR 14 2005

——_—— -—

—

In The

Supreme Court of the Gnited States

JAIME CARDENAS-GARCIA and JAHAN RASTY,

Petitioners,

TEXAS TECH UNIVERSITY, THOMAS BURTON,

individually and in his official capacity as Chair of the

Mechanical Engineering Department at Texas Tech

University; WILLIAM MARCY, individually and in his

official capacity as Associate Dean and later Dean of the

College of Engineering at Texas Tech University,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

LEvI G. MCCATHERN JOHN R. ATES

TISHA LYNN DODGE (Counsel of Record)

McCATHERN MOOTY ALBO & OBLON, L.L.P.

3710 Rawlins 2200 Clarendon Blvd.

Dallas, Texas 75219 Arlington, Virginia 22201

(703) 562-3385

March 14, 2005

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

1. Should this Court grant certiorari to resolve an

acknowledged and intractable circuit split over the stan-

- dard for what constitutes actionable retaliation in a Title

VII suit under 42 U.S.C. § 2000e-3(a), including what

employer conduct meets the appropriate threshold for

actionable retaliation under Title VII?

2. Should this Court grant certiorari to resolve the

circuit split regarding what employer conduct constitutes

actionable discrimination in a Title VII suit under 42

U.S.C. § 2000e-2?

PARTIES TO THE PROCEEDINGS BELOW

All parties are set forth in the caption of the case.

RELATED CASES

The first question presented in this case is substan-

tially the same as the second question presented in Stav-

ropoulos v. Firestone, et al., Case No. 04-1099, which is

before this Court on a Petition for Writ of Certiorari.

I OA al 0 al Ne tee

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................c.ecccceceoseses.-.-.-.. i

PARTIES TO THE PROCEEDINGS BELOW. ............. ii

NEE ee eee ii

CPI Ie TINT ois vccccscecncesascocascasecssssanccesncesse. iii

TABLE OF AUTHORITIES ...0.0.............ccccccccososceseoeess. Vv

PETITION FOR A WRIT OF CERTIORARI................ 1

ERE ETT See aN a cA 1

ERE RE Sea aE ee 1

I 1

SIE wh tiBicheceirasetssactebeststisseosasausSeases saccieieccashcas, 2

REASONS FOR GRANTING THE WRIT.................... 12

I. Certiorari Should Be Granted To Resolve the

Acknowledged and Intractable Circuit Split

Over the Standard for What Constitutes

Actionable Retaliation .....0..0.0......ccccccccccescc--.... 13

A. The Courts of Appeals Are Intractably

Divided Over the Question Presented and

The Court’s Intervention Is Needed To

Resolve This Intolerable Circuit _ 13

B. Certiorari Is Further Warranted Because

This Issue Is Both Frequently Recurring

EEE i a Ie 18

C. This Case Is An Ideal Vehicle for

Determining the Standard for Actionable

LAE ET SA a 20

D. The Fifth Circuit’s Decision Is Wrong on

the Merits and Conflicts With Decisions of

SE et aa 23

ara

TABLE OF CONTENTS -— Continued

Page

II. Certiorari Should Be Granted To Resolve The

Circuit Conflict Over What Conduct Constitutes

Actionable Discrimination Under 42 U.S.C. -

OF acienicinsisnappitnliadnkasia caida eatieacmatetacaa ethane, 27

A. The Fifth Circuit’s Decision Is Wrong on

the Merits and Creates a Circuit Conflict... 28

B. Review Is Warranted Because The Decision

Below Conflicts With This Court’s Decision

SR SRGUOMORIG O. PTOMIG snceccsssncsicscscscestenanansevs 29

EI ssisihetninctsinbicthtiabiibiitiincienscnialianinsaninilanie 30

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Conboy, 156 F.3d 167 (CA2 1998).........00.0.0.6.. gy

Artis v. Francis Howell N. Band Booster Ass’n, 161

A BE Oe Ce ie iiccnitttidieuanncbitaietiatiget ao 8

Aviles v. Cornell Forge Co., 183 F.3d 598 (CA7

ITED <arsccnincicnnspnisnabiabitiaihidacnidaiis lit ON Bee ie rane 24

Bazemore v. Friday, 478 U.S. 385 (1986)..........cccccccceesceeee 29

Berry v. Stevinson Chevrolet, 74 F.3d 980 (CA10

I siedinsiignin sassintinalabeiiatigiidaidiiii dieses arate ae eee eee 24

Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S.

SA RITE sansinicithasivineiiataaiiiasiepoa deter Rc eee eae eo 24

Burger v. Central Apartment Mgmt., Inc., 168 F.3d

Se A SE aktatisisitniihicieninttniaissantttociaaenen 9, 13, 14

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742

STUD iss dnpseitiibdoedisthesecdaaiasiaabiabiamana tne wie naan aa 26

Butts v. County of Volusia, 222 F.3d 891 (CA11

i Ra NMA TO GOI He Man Ie MEE 8

Cardenas v. Massey, 269 F.3d 251 (CA3 2001)...........000... 20

Collins v. State of Illinois, 830 F.2d 692 (CA7 1987)........ 17

Dennis v. County of Fairfax, 55 F.3d 151 (CA4

NOP ibepnsin scisiniiiiinceiciaspeibiismanicbakidgumbce ira ster se are 8

Dollis v. Rubin, 77 F.3d 777 (CA5 1995) ........ccccccsseesceeee 13

Durham Life Insurance Co. v. Evans, 166 F.3d 139

CERI BOD isaicsstttinsidsininscenetiadeagitadeh ance aacaniaeal 24

EEOC v. Board of Governors of State Colleges &

Universities, 957 F.2d 424 (CA7 1992)............cccsceecesees 21

TABLE OF AUTHORITIES — Continued

EEOC v. Cosmair, Inc., L’Oreal Hair Care Div., 821

F.2d 1086 (CAS 1967) .......cccccscccrsscccccccccscescscssccossoccssossee 19

Faragher v. City of Boca Raton, 524 U.S. 775 (1998)... 25, 26

Federation of African American Contractors v. City

of Oakland, 96 F.3d 1204 (CA9 1996)..............cccccceeeseeees 8

Felton v. Polles, 315 F.3d 470 (CA5 2002) ...............000+ 9,14

Flannery v. Recording Indus. Ass’n of America, 354

9.34 GER COAT BEG benctcstetccenininininmnets 19

Foley v. University of Houston System, 324 F.3d 310

COAB BOGE accencqssessecszscnssensesinceensecnsenssemsantinaphiamenaaans 14

Gillis v. Georgia Dep’t of Corrections, et al., __ F.3d

__., 2005 U.S. App. LEXIS 2924, at *15; Case

Ge tt) | 5 eee 28

Hashimoto v. Dalton, 118 F.3d 671 (CA9 1997) ............... 22

Jett v. Dallas Independent School District, 491 U.S.

FOE CABG ED wecencesssssrssntsnssttintsetneneenitatitedaeeiaeene 8

Johnson v. Cambridge Indus., 325 F.3d 892 (CA7

BODE) .cerereensrsssesornsinsvhtisteieaiaae 25

Johnson v. Palma, 931 F.2d 203 (CA2 1991).................... 21

Jones v. R.R. Donnelly & Sons, Inc., 541 U.S. 369

CBD) .ccrccccrsvecccrescsteescetuccseneebibiinecenseneneienaisassaninaanaannene i)

Kim v. Nash, 123 F.3d 1046 (CA8 1997)...................ccce000 20

Knox v. State of Indiana, 93 F.3d 1327 (CA7 1996) ......... 17

Mattern v. Eastman Kodak Co., 104 F.3d 702 (CA5

BOGE) ccrrntscstesinnieee 9, 13, 25, 26, 27

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)... 16, 26

Ray v. Henderson, 217 F.3d 1234 (CA9 2000) ...... 15, 16, 21

Vii

TABLE OF AUTHORITIES - Continued

Page

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)... 16, 19, 26, 27

Smart v. Ball State Univ., 89 F.3d 437 (CA7 1996).......... 17

Von Gunten v. Maryland, 243 F.3d 858 (CA4 2001)......... 17

Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453

SON Mie cilctisicesithiniceshicaselar acini Ri ea St 14

Wyatt v. City of Boston, 35 F.3d 13 (CA1 1994).......... 17, 20

Yartzoff v. Thomas, 809 F.2d 1371 (CA9 1987)................ 20

STATUTES

ERR renee aN ee ER IN ae 1

EE ea ere Jd passim

i a ee 1, 2, 8,9

ee iy Oe SI ireitictechisnenisinenciinaceneianinetckenie 18

i LT Reale PUN Ra ce PO 19

a IN A 7

GB TIED. § BBO Ba) accccceccccscecescsccsnccccssnessseaces 1, 12, 27, 28

| ALRITE 23, 25

a PI ii ii cia oo 7,17

42 U.S.C. §$ 20000-Ba)..................cccccccceccccccscceees 1, 12, 13, 25

| ET TT De TUE 19

OTHER AUTHORITIES

BLACK’s Law DICTIONARY 500 (8th Ed. 2004)...0....0.........-. 25

EEOC, “Charge Statistics FY 1992 Through FY

2003,” at http://www.eeoc.gov/stats/charges.htm) ........ 19

TABLE OF AUTHORITIES - Continued

Page

Ernest F. Lidge III, The Meaning of Discrimination:

Why Courts Have Erred in Requiring Employ-

ment Discrimination Plaintiffs to Prove That the

Employer’s Action Was Materially Adverse or

Ultimate, 47 U. KAN. L. REV. 333 (1999) ............... eee 26

Joel A. Kravetz, Deterrence v. Material Harm:

Finding the Appropriate Standard to Define an

“Adverse Action” in Retaliation Claims Brought

Under the Applicable Equal Employment

Opportunity Statutes, 4 U. Pa. J. LAB. & Emp. L.

I Te tiiesiniiniticcpssciiniasnatdidiinshnhniniaubtcteieaseainnaneaanneiiidios 14

Rosalie Berger Levinson, Parsing the Meaning of

“Adverse Employment Action” in Title VII

Disparate Treatment, Sexual Harassment, and

Retaliation Claims: What Should Be Actionable

Wrongdoing, 56 OKLA. L. REV. 623 (2003)........ 14, 19, 22

U.S. Equal Employment Opportunity Comm’n

Compliance Manual, § 8, at 14 (May 1998), at

http://www.eeoc.gov/policy/docs/retal.pdf..... 16, 20, 23, 24

PETITION FOR A WRIT OF CERTIORARI

Petitioners Jaime Cardenas-Garcia and Jahan Rasty

respectfully request that this Court grant a writ of certio-

rari to review the judgment of the United States Court of

Appeals for the Fifth Circuit entered in this case finding

that lower salaries for Petitioners when compared to

similar non-minority faculty, disciplinary investigations

and poor performance reviews that resulted in lesser pay

increases than received by comparable Anglo professors

did not constitute actionable discrimination or retaliation

under Title VII or Section 1981.

OPINIONS BELOW

The relevant opinions and orders of the United States

District Court for the Northern District of Texas (Pet. App.

at 4a-69a) and the United States Court of Appeals for the

Fifth Circuit (id. la-3a) are reproduced in the appendix.

The court of appeals’ decision is unreported, but may be

found at 2004 U.S. App. LEXIS 25801.

JURISDICTION

The opinion and judgment of the court of appeals was

entered on December 14, 2004. This petition is filed within

ninety days of that date. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

This petition involves Sections 702(a) and 703(a) of

the 1964 Civil Rights Act, respectively referred to as the

non-discrimination and anti-retaliation provisions of Title

VII, which are codified at 42 U.S.C. §§ 2000e-2(a), 2000e-

3(a). The petition also involves 42 U.S.C. §§ 1981 and

1983. The pertinent text of these provisions is set forth in

the Pet. App. at 70a-71a.

STATEMENT

This case is brought by Jaime Cardenas-Garcia

(Cardenas-Garcia) and Jahan Rasty (Rasty) against their

former employer, Texas Tech University (TTU) and their

former supervisors, Thomas Burton (Burton) and William

Marcy (Marcy), both in their individual and official capaci-

ties, under Title VII and 42 U.S.C. §§ 1981 and 1983 for

employment discrimination based on national origin and

retaliation. Respondents’ acts of discrimination and

retaliation included: imposing lower salaries for Petition-

ers when compared to similar non-minority faculty;

unjustified poor performance reviews which resulted in

proportionately lower raises and salaries; and internal

investigations into alleged misconduct and other issues.

Applying a standard that conflicts with other circuits,

the Fifth Circuit held that these actions did not qualify as

“ultimate employment actions” and that Petitioners’

discrimination and retaliation claims therefore were not

actionable under Title VII or Section 1981. Pet. App. at 1a-

3a. This Court should grant certiorari to resolve circuit

conflicts over the statutory interpretation issues raised by

this case and to bring needed clarity and uniformity to this

most important area of law — protecting public and private

employees from discrimination and retaliation in employ-

ment.

1. Petitioners Cardenas-Garcia and Rasty are

foreign-born (Ecuadorian and Iranian, respectively)

citizens of the United States who began working in TTU’s

Department of Mechanical Engineering (“MED”) in 1988

as assistant professors. See Pet. App. at 16a, 21a.

The environment in the MED certainly was not welcom-

ing to minority faculty, as Petitioners were subjected to

several inappropriate comments during their employment.

At faculty meetings in the early 1990’s, an Anglo-American

faculty member made statements such as: “This is the white

section,” when referring to seating. Pet. App. at 19a. Another

faculty member stated during a committee meeting that

“minorities take jobs from white men.” Id.

aia

In 1994, the chair of the MED resigned as a result of a

“no confidence” letter signed by several professors, includ-

ing Rasty, two additional minority professors and five

Anglo-American professors. Pet. App. at 21a; Pet. C.A. Br.

at 7-8, R591.' Respondent Marcy, the Associate Dean of the

College of Engineering at the time, became responsible for

finding a new MED chair. Pet. App. at 21a. Respondent

Burton started as the new chair in 1995. Jd. Respondent

Marcy later accused Rasty and the two other minority

professors who signed the no confidence letter as being

responsible for the bad atmosphere within MED, though

the non-minority, Anglo professors who signed the no

confidence letter were not labeled as “troublemakers.” See

id.; Pet. C.A. Br. at 7-8.

For his part, Respondent Burton openly stated that

one of the weaknesses of TTU’s MED graduate program

was that the majority of graduate students were foreign-

ers. See Pet. App. at 17a; Pet. C.A. Br. at 8-9; R1015. He

also wrote and sent a March 24, 1998 memo to all MED

faculty stating:

I [Burton] want to improve the reputation and

intrinsic quality of the Ph.D program so that 1) it

is ranked in the top 60 in the country and 5th in

the Big 12, behind UT, TAMU, Colorado and

Iowa state and 2) we establish a reputation suffi-

clently good to attract quality U.S. Ph.D students

into the program each year.

See id., Pet. C.A. Br. at 8-9, R742 (emphasis added). At a

faculty meeting, Cardenas-Garcia challenged Burton to

prove the accuracy of his statement that the MED gradu-

ate program was deficient because the majority of gradu-

ate students were foreigners, but Burton stated that he

was too busy to respond. Pet. C.A. Br. at 9; R566.

* As used herein, “R__” refers to the record before the court of

appeals and “Pet. C.A. Br. __” refers to Petitioners’ brief before the

court of appeals.

In 1999, Cardenas-Garcia chaired a committee search-

ing for a professorial candidate. R1018-1019. During a

search committee meeting, an Anglo-American professor

stated: “This department is a lumpy melting pot. I will

reject all candidates whose names I cannot pronounce.

Just kidding.” Pet. App. at 18a. Cardenas-Garcia reported

this discriminatory comment to Respondent Burton. See

id. Following Cardenas-Garcia’s report, an EEO officer for

TTU and the Associate Provost attended the next search

committee meeting and informed the faculty members

that such off-nsive comments were inappropriate. Id.

Burton then retaliated against Cardenas-Garcia in his

very next performance review by stating that Cardenas-

Garcia caused “unnecessary disputes between himself and

other [faculty-search]. committee members, resulting in

unnecessary impediments to the search process.” Pet. App.

at 18a-19a; Pet. C.A. Br. at 9-10. Based on this lower

performance rating, Burton gave Cardenas-Garcia a lower

raise. See Pet. App. at 18a-19a; R1186-1189. The perform-

ance review also was discriminatory in that Burton gave

the Anglo professor who made the comment a glowing

review, stating that this professor’s contributions to the

MED were “above and beyond the call of duty.” See Pet.

App. at 18a; R657. Later in 2000, Cardenas-Garcia filed a

charge with the EEOC claiming, among other things,

discrimination and retaliation based on “low negative

evaluations by [Respondent] Burton, resulting in lower

salary and raises.” See Pet. App. at 20a; R1535.

In 2000, Cardenas-Garcia also filed internal griev-

ances against Burton for discrimination and retaliation

relating to his performance evaluations and for penalizing

Cardenas-Garcia with a low salary. See Pet. App. at 17a, 20a;

Pet. C.A. Br. at 12. Respondent TTU’s grievance procedures

mandated mediation, and Cardenas-Garcia agreed to medi-

ate. Pet. C.A. Br. at 12, R580-81. However, while the parties

attempted to set up a mediation process and schedule,

Burton refused to mediate unless Cardenas-Garcia agreed

to withdraw his allegations regarding discrimination and

drop his EEOC Charge. See Pet. App. at 20a; Pet. C.A. Br.

at 12-13; R651-53, 1537 (“I [Burton] will not engage in

mediation with you as long as you [Cardenas-Garcia]

insist on inextricably tying the aforementioned profes-

sional issues to your allegation that I have engaged in

racial discrimination against you” and requesting that

Cardenas-Garcia “state in direct language whether you

are willing to drop the EEOC charge you have filed and

whether you are willing to retract the allegation of dis-

crimination from the language in your grievances.”).

Marcy admitted that it was inappropriate under TTU’s

policies for Burton to demand that Cardenas-Garcia drop

the discrimination allegations and EEOC Charge because

Cardenas-Garcia had a right to follow the internal griev-

ance process. See Pet. C.A. Br. at 13; R696.

Cardenas-Garcia resigned from TTU in the fall of

2002 to teach at the University of Maryland, giving up his

tenured position for a non-tenured one. See Pet. App. at

20a-21a.

Petitioner Rasty also complains of disparate treat-

ment and retaliation. In 1996, Rasty traveled to France for

a symposium where he was presenting a paper; he sought

reimbursement for the trip, but there was an apparent

discrepancy regarding the price of airfare. Pet. App. at

22a-23a. Burton refused to reimburse Rasty for the entire

trip. See id. In 1998, Rasty filed a grievance against

Burton, seeking full reimbursement. Jd.; see also R1104.

The 1998 grievance also complained that Burton had

discriminated against Rasty in regard to salary increases

and raised harassment and other issues. Pet. App. at 23a.

TTU convened a grievance committee, and in December

1998, the grievance committee granted Rasty reimburse-

ment for portions of the France trip, but denied relief on

other issues raised. Jd.; R1104.

Shortly after the grievance committee issued its

December 1998 report, Burton retaliated and further

discriminated against Rasty by alleging to Marcy, who was

Dean of Engineering at the time, that Rasty had misrepre-

sented and falsified certain academic-related information.

See Pet. App. at 24a; R861 (March 12, 1999 e-mail from

Burton to Marcy indicating that Burton had told Marcy “a

couple of months ago” that Burton believes Rasty “has

been guilty of misrepresentation and falsification of

information,” but that Burton did not report the allega-

tions “a couple of months ago” because Burton and Marcy

agreed to wait until an Anglo professor’s tenure had been

approved). Marcy subsequently recommended that TTU

initiate an investigation into the matter. Jd. Over the

course of the next two years, Rasty had to expend signifi-

cant time and resources defending himself throughout this

internal investigation. See Pet. App. at 30a. An initial

panel recommended that TTU terminate Rasty, but Rasty

subsequently appealed to the University Tenure Advisory

Committee, which reversed the termination recommenda-

tion, finding that Rasty had been denied due process. See

Pet. App. at 24a-25a. Rasty claimed the misconduct investi-

gation also was discriminatory in that a similarly-situated

white employee did not have a formal investigation initiated

against him for inaccuracies in his academic-related materi-

als, whereas Rasty did. See Pet. App. at 26a-27a.

In a December 10, 1999 letter to the Provost, Presi-

dent, and the Senior Associate Dean of Engineering,

Marcy also engaged in retaliation and discrimination by

urging his superiors to stop Rasty from participating in a

federally-approved research project involving high energy

munitions utilizing explosive-driven components for the

U.S. Army and Air Force. Pet. App. at 27a-28a. Marcy

accused Rasty of having a “hidden agenda” to use this

federal research program as a cover for acquiring high

explosives and detonators. R1158. Marcy accused Rasty of

being a “disgruntled faculty member” whose “behavior has

been erratic and threatening.” Jd. Marcy stated that he,

Burton and other faculty members would be “at risk if Dr.

Rasty is given the legal means to acquire high explosives

and detonating devices.” Jd. Marcy made this request

while Rasty was being investigated by an ad hoc commit-

tee for allegations of “misconduct in research” instigated

by Marcy. Pet. App. at 28a. These accusations were made

even though Rasty did not purchase the energetic materi-

als, had no access to the energetic materials, and did not

conduct the actual experiments used for the research. Pet.

C.A. Br. at 15-17; R1362. Nearly a year later, in October

2000, upon Rasty’s discovery of Marcy’s accusations, other

members of the research project wrote letters to the

President to verify that Rasty was not a threat. Id.

Marcy made these allegations against Rasty, but did

not make such allegations against a similarly-situated

Anglo-American professor, Scott Norville. Pet. C.A. Br. at

17. ATF agents confiscated Norville’s explosives because

he had misused them. Jd. Norville later confronted and

verbally abused one of the ATF agents at a grocery store.

Id. ATF reported these incidents to Marcy. Id. Yet, Marcy

did not take any adverse employment actions against

Norville or report Norville to the Provost in an attempt to

stop Norville’s research with explosive materials, as he did

with Rasty. Id.

Finally, Rasty also received salary increases that were

below those of other professors of the same or lesser rank

in the MED from 1997 to 2000. Pet. App. at 30a. Burton

claims the lower raises are a result of Rasty’s lower rat-

ings on his performance reviews. Id. Rasty believes that

since he filed his grievances and complained of discrimina-

tion he has been penalized by Burton through his lower

raises and because Burton refuses to remove items from

his performance reviews, such as the travel reimburse-

ment incident and other accusations. See id.

2. Petitioners subsequently filed this lawsuit. At

issue here are two separate claims under separate federal

statutes. Petitioners sue Respondent TTU for national

origin discrimination and retaliation pursuant to Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3.

Petitioners filed claims against Respondents Burton and

Marcy in their individual and official capacities for illegal

discrimination based on ethnicity and retaliation pursuant

to 42 U.S.C. §§ 1981 and 1983. Both sets of claims were

dismissed by the district court at summary judgment.’

On January 20, 2004, the district court granted judg-

ment for Respondents Burton and Marcy on the discrimina-

tion and retaliation claims under 42 U.S.C. §§ 1981 and

1983.* Pet. App. at 14a-69a. In analyzing the discrimination

* Petitioners also asserted claims for monetary damages against

Respondent TTU based on § 1981 and § 1983, which were dismissed in

an August 6, 2003 order by the district court as being barred by the

Eleventh Amendment. See Pet. App. at 16a. Petitioners also asserted

substantive and procedural due process claims against Respondents

under § 1983, which were dismissed by the district court at summary

judgment. See Pet. App. at 9a-12a; 56a-57a; 61a-67a. These issues

remain to be determined on remand. Here, the court of appeals

bypassed these questions to address directly whether Respondents’

actions constituted actionable discrimination and retaliation under Title

VII and § 1981. Jd. at 12a-18a. Petitioners specifically reserve their rights

to address these issues on any further review by the lower courts.

* The district court appears to have allowed the claims to proceed

against Marcy and Burton in their individual and official capacities under

§ 1981 and § 1983. Citing Fifth Circuit precedent, the district held that

state employees like Petitioners who complain of discrimination or

retaliation “must assert a cause of action against individual fellow

employees under § 1983 to remedy violations of civil rights under § 1981”

and that liability under § 1981 “will lie against an individual defendant if

the individual defendant is essentially the same as the State for the

purposes of the complained of conduct.” Pet. App. at 37a. The court of

appeals did not pass on these issues, and they remain to be determined on

remand. This case therefore currently does not present the question

whether Jett v. Dallas Independent Schoo! District, 491 U.S. 701 (1989)

remains good law after the 1991 amendment to § 1981, a question that has

engendered much debate among the circuits. A split has emerged over Jett’s

first holding — whether, after the 1991 amendment of § 1981, 42 U.S.C.

§ 1983 remains the exclusive remedy for a violation of the rights contained

in § 1981. Compare Butts v. County of Volusia, 222 F.3d 891, 894 (CA11

2000) (“Nothing in the 1991 amendment to § 1981 evinces Congress’ desire

to alter the Supreme Court’s conclusion in Jett.”), Artis v. Francis Howell N.

Band Booster Ass’n, 161 F.3d 1178, 1181 (CA8 1998) (holding that “[a] federal

action to enforce rights under § 1981 against a state actor may only be

brought pursuant to § 1983”), Dennis v. County of Fairfax, 55 F.3d 151,

156, n.1 (CA4 1995) (same), with Federation of African American Contractors

(Continued on following page)

and retaliation claims, the district court held Petitioners had

to prove, inter alia, that they suffered an “adverse employ-

ment action.” Pet. App. at 40a-43a.‘ In regard to this ele-

ment, the district court candidly noted that “the Fifth Circuit

has analyzed an ‘adverse employment action’ more strictly

than other circuits and requires that only an ‘ultimate

employment decision’ can form the basis for liability.” Id. at

41a, citing Burger v. Central Apartment Memt., Inc., 168 F.3d

875, 878 (CA5 1999) and Mattern v. Eastman Kodak Co., 104

F.3d 702, 707 (CA5 1997). “Ultimate employment decisions’

include acts ‘such as hiring, granting leave, discharging,

promoting, and compensating.’” Pet. App. at 41a. The district

court then listed acts that are not ultimate employment

decisions under the Fifth Circuit’s strict test: “ostracism by

coworkers, loss of some job duties, formal discipline, rude

treatment by employer, verbal reprimands, threats of poten-

tial dismissal, criticism of work or conduct, refusal to con-

sider employee’s input in business decision, and low

evaluations that could lead to missed pay increases.” Id.

at 42a (emphasis added). The district court further explained

that “nothing more than a dispute over the quantum of

v. City of Oakland, 96 F.3d 1204, 1214 (CA9 1996) (concluding that § 1981

contains an implied cause of action against state actors and that, with the

addition of subsection (c), Congress “overturned Jett’s holding that 42

U.S.C. § 1983 provides the exclusive federal remedy against state actors for

the violation of rights under 42 U.S.C. § 1981”); see also Felton v. Polles,

315 F.3d 470, 479-83 (CA5 2002) (questioning whether 1991 amendment to

§ 1981 altered Jett and stating in dicta that state employee's recourse for

violations of § 1981 by fellow state employee, either in his official or

individual capacity, is exclusively through § 1983); Anderson v. Conboy, 156

F.3d 167, 178 n.19 (CA2 1998) (noting the “ambiguity” of whether subsec-

tion (c) may create an implied cause of action against state actors, but

finding the question irrelevant to its analysis).

‘In analyzing the claims, the district court utilized a two-year

statute of limitations on Petitioners’ § 1981 and § 1983 claims, Pet. App. at

45a, which is clear error. See Jones v. R.R. Donnelly & Sons, Inc., 541 USS.

369 (2004) (holding four-year statute of limitations applies to § 1981 claims

arising out of causes of action created by 1991 amendments to § 1981).

pay increases is not an actionable adverse employment

activity ...” Id.

In regard to Cardenas-Garcia, the district court found

that his discrimination and retaliation claims failed

because he was not subjected to an adverse employment

action. Pet. App. at 54a. In regard to Cardenas-Garcia’s

claims that less-than-average pay raises based on poor

performance reviews constituted discrimination and

retaliation, the district court held that if Cardenas-Garcia

had been denied a pay raise he would have suffered an

“ultimate employment decision,” but because he did

receive a pay raise (even though it was proportionately

less than it should have been due to discriminatory and

retaliatory motives), Cardenas-Garcia did not suffer an

adverse employment action. Jd.

In regard to Rasty, the district court held that “[a]n

investigation of an employee’s alleged misconduct is not an

adverse employment action.” Jd. at 59a. Accordingly, the

district court concluded that Rasty’s discrimination and

retaliation claims relating to the investigation of alleged

academic dishonesty did not constitute an actionable

adverse employment action, even if motivated by illegal

discriminatory or retaliatory motives. Jd. at 59a-60a. The

district court also granted summary judgment on Rasty’s

compensation claims because a “dispute over the quantum

of pay increases is not an actionable adverse employment

action. .. .” Id. at 66a.

On January 22, 2004, the district court granted summary

judgment in favor of Respondent TTU on the Title VII dis-

crimination and retaliation claims. Pet. App. at 4a-13a. The

district court found that Petitioners “failed to make a prima

facie showing of discrimination [or] retaliation that would be

actionable” because Petitioner’s did not “suffer[] an adverse

employment action as required by the prima facie elements of

discrimination.” Pet. App. at 12a, n.5 (citing Mota v. Univ. of

Tex. Houston Health Science Ctr, 261 F.3d 512, 519 (CA5

2001)). Holding that eleinents of § 1981 claims are “identical”

to Title VII claims, the district court “found that [because]

Oe a ee ee Pe ey

eS Ve ee ee

there were no violations for discrimination . . . or retaliation

under § 1981 [as found on its order on qualified immu-

nity], it stands to reason that there can be no violations

under Title VII.” Pet. App. at 13a.

3. On appeal, the Fifth Circuit affirmed on the

narrowest of grounds. After finding that Title VII and

§ 1981 claims are analyzed under Title VII standards, Pet.

App. at 2a, n.2, the Fifth Circuit reasoned that “[plroof of

an adverse employment action is a requisite element of the

plaintiffs’ prima facie cases of discrimination and retalia-

tion under Title VII and § 1981.” Pet. App. at 2a. Like the

district court, the court of appeals held that “under [Fifth

Circuit] jurisprudence, an adverse employment action

means an ultimate employment decision, such as hiring,

granting leave, discharging, promoting and compensat-

ing.” Under this strict test, the Fifth Circuit found that

Petitioners’ Title VII and Section 1981 claims were pre-

cluded because poor performance reviews and investiga-

tions do not constitute an “ultimate employment decision.”

Pet. App. at 2a. In regard to the discriminatory and

retaliatory compensation claims, the Fifth Circuit affirmed

summary judgment for Respondents, reasoning: “While...a

complete denial of a pay increase may qualify as an ultimate

employment decision, we have never held that a proportion-

ately lesser pay increase, where an increase was received

every year, could fulfill the requirement.” Id. at 3a."

This petition followed.

® In so ruling, the Fifth Circuit did not consider numerous of Petition-

ers’ arguments for reversal, including that the refusal to process Petitioner

Cardenas-Garcia’s grievance constituted an illegal discriminatory and

retaliatory act, that the district court erred on statute of limitations

grounds, that Respondents Burton and Marcy were not entitled to

immunity, and that the district court violated summary judgment stan-

dards by deciding issues of disputed fact and ignoring record evidence. Pet.

C.A. Br. at 32-47. Because Petitioners’ claims were dismissed in full based

solely on the outcome determinative “ultimate employment decision” test,

Pet. App. at 2a-3a, these issues = open to be determined on remand.

REASONS FOR GRANTING THE WRIT

This case presents two fundamental and recurring

questions under Title VII. First, courts of appeals are

entrenched in a long-lasting circuit split regarding the

appropriate standard for determining what constitutes an

actionable retaliation claim under 42 U.S.C. § 2000e-3(a).

Second, the courts of appeals have issued conflicting

decisions as to what constitutes actionable discrimination

under 42 U.S.C. § 2000e-2(a). Review by this Court is thus

plainly warranted to provide uniformity on these critical

and frequently recurring questions that have profound

implications for this landmark civil rights statute.*

Because the questions presented determine the rights

of innumerable employees throughout the United States

claiming discrimination and retaliation under Title VII,

such a conflict is untenable. This case presents an ideal

vehicle to resolve the questions presented because the

Fifth Circuit’s ruling on whether Respondents’ acts consti-

tuted actionable discrimination or retaliation dictated the

case’s ultimate result. The types of undisputed discrimina-

tory and retaliatory acts taken against Petitioners also

makes this case an ideal vehicle for determining what, if

any, differences exist between actionable discrimination

and retaliation claims and for establishing the appropriate

threshold for such claims. This case thus affords the Court

a uniquely appropriate opportunity to settle these impor-

tant yet unresolved statutory interpretation issues.

* As noted above, the district court held that § 1981 allows claims

for discrimination and retaliation alleged here under the standards set

forth for Title VII claims. Pet. App. at 12a, n.5. That ruling was not

challenged on appeal to the Fifth Circuit. Petitioners have framed the

issues solely in terms of Title VII because upon remand the Title VII

standards will be used to determine liability under § 1981.

I. Certiorari Should Be Granted To Resolve the

Acknowledged and Intractable Circuit Split

Over the Standard for What Constitutes Ac-

tionable Retaliation.

This Court’s intervention is needed to resolve an

acknowledged and intractable circuit split over the stan-

dard for what constitutes actionable retaliation in a Title

VII suit under 42 U.S.C. § 2000e-3(a). The anti-retaliation

provision of Title VII of the Civil Rights Act of 1964 pro-

hibits an employer from “discriminat[ing] against any of

his employees * * * because he has opposed any practice

made an unlawful employment practice by this subchap-

ter, or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceed-

ing, or hearing under this subchapter.” 42 U.S.C. § 2000e-

3(a).

A. The Courts of Appeals Are Intractably Di-

vided Over the Question Presented and

The Court’s Intervention Is Needed To Re-

solve This Intolerable Circuit Split.

For ten years, the Fifth Circuit has insisted that the

anti-retaliation provision forbids only those acts of retalia-

tion that constitute what that circuit labels “ultimate

employment decisions.” Dollis v. Rubin, 77 F.3d 777, 782

(CA5 1995); see also, Mattern v. Eastman Kodak Co., 104

F.3d 702, 708-09 (CA5), cert. denied, 522 U.S. 932 (1997).

This is avowedly a strict interpretation of federal anti-

retaliation statutes. Burger, 168 F.3d at 878. In the Fifth

Circuits’ view “ultimate employment decisions” are limited

to acts “such as hiring, granting leave, discharging, pro-

moting and compensating.” Pet. App. at 2a. An employer

may retaliate against an individual for protected activity

so long as the method of retaliation does not involve an

ultimate employment decision. As the district court in the

instant case observed, the Fifth Circuit since 1995 has

identified a wide variety “laundry list” of retaliatory

practices that it deems legal. Pet. App. at 41a-43a.’

As the Fifth Circuit and other courts and commenta-

tors have acknowledged, the circuits are split over the

threshold of harm that must be alleged to prevail on a

Title VII discrimination claim. For example, six years ago,

the Fifth Circuit recognized that its “ultimate employment

decision” rule is in conflict with most other circuits:

Our court has analyzed [section 704(a)] in a

stricter sense than some other circuits. ... The

Eleventh Circuit has recently discussed the cir-

cuit split surrounding the issue of whether Title

VII's protection against retaliatory discrimina-

tion extends only to “ultimate employment deci-

sions.” ... We are not alone, but we are in the

minority.

Burger, 168 F.3d at 878 (CA5 1999); see Wideman v. Wal-

Mart Stores, Inc., 141 F.3d 1453, 1456 (CA11 1998) (ex-

pressly rejecting Fifth Circuit’s interpretation of anti-

retaliation provisions as “inconsistent with the plain

language of [Title VII]”); Rosalle Berger Levinson, Parsing

the Meaning of “Adverse Employment Action” in Title VII

Disparate Treatment, Sexual Harassment, and Retaliation

Claims: What Should Be Actionable Wrongdoing, 56 OKLA.

L. REV. 623 (2003) (“[T]he circuit courts are divided as to

how much harm an employee must endure before claims of

disparate treatment or retaliation are actionable.”) (here-

inafter “Parsing the Meaning of ‘Adverse Employment

Action’”); Joel A. Kravetz, Deterrence v. Material Harm:

Finding the Appropriate Standard to Define an “Adverse

Action” in Retaliation Claims Brought Under the Applica-

ble Equal Employment Opportunity Statutes, 4 U. PA. J.

LaB. & Emp. L. 315, 321 (2002) (noting that circuits

" The Fifth Circuit has also held that the doctrine applies to claims

under section 1981. Foley v. University of Houston System, 324 F.3d

310, 316-17 and n.2 (CA5 2003); Felton v. Polles, 315 F.3d 470, 486 (CA5

2002).

generally employ the term “adverse employment action” in

such claims and that circuits generally agree that “actions

such as hiring, discharge, compensation [and other major

employment decisions] constitute adverse actions,” but

that they nonetheless “disagree about whether less egre-

gious employment actions (i.e., poor performance evalua-

tions, lateral transfers, intermediate acts of discipline and

harassment) constitute adverse actions” under Title VII's

retaliation prohibition).

The Ninth Circuit has summarized this inter-circuit

conflict:

The circuits are currently split as to what consti-

tutes an adverse employment action [prohibited

by section 704(a)].... [C]ircuits that define ad-

verse employment action broadly are the First,

Seventh, Tenth, Eleventh and D.C. Circuits. An

intermediate position is held by the Second and

Third Circuits. The most restrictive view of ad-

verse employment actions is held by the Fifth

and Eighth Circuits. ...

[T]he First, Seventh, Tenth, Eleventh and D.C.

Circuits ... all take an expansive view of the

type of actions that can be considered adverse

employment actions.... The Second and Third

Circuits hold an intermediate position within the

circuit split. They have held that an adverse ac-

tion is something that materially affects the

terms and conditions of employment.... The

Fifth and Eighth Circuits, adopting the most re-

strictive test, hold that only “ultimate employ-

ment actions” such as hiring, firing, promoting

and demoting constitute actionable adverse em-

ployment actions.

Ray v. Henderson, 217 F.3d 1234, 1241-42 (CA9 2000). In

Ray, the Ninth Circuit adopted the position urged by the

EEOC, which administers Title VII,* holding that section

704(a) forbids any practice “reasonably likely to deter

employees from engaging in protected activity.” 217 F.3d at

1243.°

The Fourth Circuit has also acknowledged the prob-

lem, noting that even the position of the Eighth Circuit is

not as extreme as that of the Fifth. The Fourth Circuit

expressly rejected the rule in the Fifth Circuit.

[T]he majority of circuits have either implicitly or

explicitly rejected the “ultimate employment deci-

sion” standard in § 2000e-3 cases.... [WJhile the

Eighth Circuit has ostensibly adopted the “ulti-

mate employment decision” standard, it has consis-

tently applied a broader standard... . [I]Jn Mattern

... the Fifth Circuit expressly held insufficient the

kind of discriminatory changes in the terms, condi-

tions, and benefits of employment, which most

other courts have recognized could constitute ad-

verse employment action under § 2000e-3.... But

“ultimate employment decision” is not the standard

* The EEOC’s position is found in U.S. Equal Employment

Opportunity Comm’n Compliance Manual, § 8, at 14 (May 1998), at

http:/Awww.eeoc.gov/policy/docs/retal.pdf. The Manual indicates that

“(tlhe anti-retaliation provisions are exceptionally broad,” and “set neo

qualifiers on the term ‘to discriminate,’ and therefore prohibit any

discrimination that is reasonably likely to deter protected activity. They

do not restrict the actions that can be challenged to those that affect the

terms and conditions of employment.” Jd.

* This Court has repeatedly referred to the Manual when interpret-

ing Title VII and provided them Skidmore deference. See Meritor

Savings Bank v. Vinson, 477 U.S. 57, 65 (1986) (noting “these guide-

lines, ‘while not controlling upon the courts by reason of their authority,

do constitute a body of experience and informed judgment to which

courts and litigants may properly resort for guidance.’”); Robinson uv.

Shell Oil Co., 519 U.S. 337, 345-46 (1997) (holding that Title VII’s anti-

retaliation provision extends to former employees and giving weight to

the EEOC’s conclusion that allowing retaliation against former

employees would “deter victims of discrimination from complaining te

the EEOC.”).

in this circuit... . [W]e have expressly rejected dis-

tinctions, like those drawn by Mattern. ...

Von Gunten v. Maryland, 243 F.3d 858, 864-65 (CA4 2001).

The Solicitor General likewise has acknowledged the

circuit split in a brief before this Court: “The courts of

appeals have articulated different standards for what

types of employer conduct are actionable under 42 U.S.C.

2000e-3.” See Noland v. Henderson, Case No. 01-1259,

Brief for Respondent in Opposition, at 7; see also id. at 7-8

(citing cases rejecting Fifth Circuit’s rule and acknowledg-

ing that EEOC has taken position that 42 U.S.C. § 2000e-3

prohibits any retaliatory conduct that is “reasonably likely

to deter protected activity”), Solicitor General’s brief is

available at http://www.usdoj.gov/osg/briefs/2000/Oresponses/

2000-1259.resp.html.

In addition to the Fourth, Ninth and Eleventh Cir-

cuits, which expressly noted the existence of this conflict

in rejecting the Fifth Circuit's ultimate employment

doctrine, other circuits have held that section 703(a)

forbids retaliatory practices that are deemed lawful by the

Fifth Circuit. See, e.g., Wyatt v. City of Boston, 35 F.3d 13, 15-

16 (CA1 1994) (holding that § 703(a) forbids not only ulti-

mate employment actions, but also “actions such as ...,

disadvantageous transfers or assignments, ... unwar-

ranted negative job evaluations and toleration of harass-

ment by other employees,” all practices which are legal

forms of retaliation in the Fifth Circuit); Knox v. State of

Indiana, 93 F.3d 1327, 1334 (CA7 1996) (holding a retalia-

tory act is actionable so long as it causes significant injury

and noting that the “law deliberately does not take a

laundry list’ approach [adopted by the Fifth Circuit] to

retaliation, because unfortunately its forms are as varied

as the human imagination will permit”).””

® Coe also Smart v. Ball State Univ., 89 F.3d 437, 440 (CA7 1996)

(“[aldverse employment action has been defined quite broadly in this

circuit”); Collins v. State of Illinois, 830 F.2d 692, 702-03 (CA7 1987)

(Continued on following page)

In addition to being outcome determinative, the

circuit split over this issue is also deeply entrenched. On

numerous occasions over the past ten years, the Fifth

Circuit has had the opportunity to re-examine its ultimate

employment decision test and bring itself in line with the

majority of circuits, but has refused to do so. Instead, the

Fifth Circuit has held fast to its minority interpretation

that any Title VII discrimination claim must involve an

“ultimate employment decision.” Panel after panel has

repeated the “ultimate employment action” language

without ever looking for its statutory source. Only action

by this Court can correct this now deep-seated misunder-

standing. This Court’s intervention is necessary because

the courts of appeals’ competing legal rules are well

developed and are unlikely to converge in future litigation.

B. Certiorari Is Further Warranted Because

This Issue Is Both Frequently Recurring

and Important.

This Court should grant certiorari because the lower

courts are frequently presented with Title VII and Section

1981 retaliation claims that require them to consider

whether particular actions constitute “actionable retalia-

tion.” Under current law, these suits are governed by the

severely conflicting and uncertain standards discussed

above. .

The issue of what constitutes “actionable retaliation”

is frequently recurring, as the number of Title VII retalia-

tion claims is substantial. Title VII applies not only to

local, state, and federal government entities, 42 U.S.C.

(“several courts have found an adverse job action, for purposes of

discrimination or retaliation, in a lateral transfer even where the

transfer did not result in a reduction of pay or benefits. Title VII does

not limit adverse job action to strictly monetary considerations.”)

(footnotes omitted).

§ 2000e(a), but also to almost all “employers” in an “indus-

try affecting commerce,” 42 U.S.C. § 2000e(b), with fifteen

or more employees. According to the EEOC, over twenty

thousand Title VII retaliation claims were filed in fiscal

year 2003. EEOC, “Charge Statistics FY 1992 Through FY

2003,” at http://www.eeoc.gov/stats/charges.html.

The issue of what constitutes “actionable retaliation”

is important because the question arises in numerous

contexts. See Levinson, “Parsing the Meaning of ‘Adverse

Employment Action,’” 56 OKLA. L. REV. at 624-630 (collect-

ing cases and listing areas where question arises most

frequently).

Finally, this issue also is important in light of its

broader implications for effective enforcement of the civil

rights laws. This Court has emphasized that a central

purpose of Title VII’s anti-retaliation provision is to

“maintain{} unfettered access to statutory remedial

mechanisms.” Robinson v. Shell Oil Co., 519 U.S. 337, 346

(1997); see also, Flannery v. Recording Indus. Ass’n of

America, 354 F.3d 632, 642 (CA7 2004) (“The very purpose

of the retaliation provisions is to prevent employers from

deterring employees from exercising their rights, including

the right to file a charge of discrimination.”). Employer

conduct that chills employees from exercising their rights

to oppose discriminatory conduct in the workplace is

particularly undesirable. Unfettered access to oppose

employment discrimination is necessary because, without

it, neither the EEOC nor private litigants can effectively

enforce the anti-discrimination statutes. See, e.g., 42

U.S.C. § 2000e-5(b) (Title VII enforcement begins with the

filing of a charge); EEOC v. Cosmair, Inc., L’Oreal Hair

Care Div., 821 F.2d 1085, 1090 (CA5 1987) (“The EEOC

depends on the filing of charges to notify it of possible

discrimination.”). “If retaliation for [engaging in protected

activity] were permitted to go unremedied, it would have a

chilling effect upon the willingness of individuals to speak

out against employment discrimination or to participate in

the EEOC’s administrative process or other employment

discrimination proceedings.” EEOC Compliance Manual,

at 1-2. Given that employees are often in the best position

to observe and report discriminatory actions, allowing

employers to chill the exercise of rights to oppose dis-

crimination so long as such retaliatory actions do not

amount to an “ultimate employmen: decision” the minority

rule applied by the Fifth Circuit threatens to substantially

curtail the effective enforcement of this landmark civil

rights statute.

C. This Case Is An Ideal Vehicle for Deter-

mining the Standard for Actionable Re-

taliation.

Under the Fifth Circuit’s strict standard, the court of

appeals rejected three bases of retaliation that other

circuits would have deemed actionable. The question of

what constitutes actionable retaliation is therefore

squarely outcome determinative in this case. Moreover,

the case presents an ideal record on which to decide the

question presented because each of the acts that Petition-

ers contend constitutes actionable retaliation is clearly

established in the record and undisputed by Respondents.

First, Respondent Burton created a negative perform-

ance evaluation of Petitioner Cardenas-Garcia in 2000 in

direct response to his complaint about discriminatory

comments in the department’s hiring process, comments

that TTU’s EEO officer and Assistant Provost confirmed

were inappropriate. Pet. App. at 18a-19a. Though the Fifth

Circuit held such “poor performance reviews” were not

actionable under its strict standard, Pet. App. at 2a,

several other circuits have stated that such “unwarranted

negative job evaluations” can qualify as retaliatory acts.

Wyatt v. City of Boston, 35 F.3d 13, 16 (CA1 1994); see also

Yartzoff v. Thomas, 809 F.2d 1371, 1376 (CA9 1987);

Cardenas v. Massey, 269 F.3d 251, 263-64 (CA3 2001)

(finding that negative performance evaluations contrib-

uted to a “hostile work environment” and the plaintiff had

been subjected to an adverse employment action); Cf: Kim

v. Nash, 123 F.3d 1046, 1060 (CA8 1997) (holding that

“reduction of duties, disciplinary action and negative

personnel reports, as well as required remedial training,

constituted adverse employment action” in retaliation

claim). Had Cardenas-Garcia lived in one of these jurisdic-

tions, he would have had a viable retaliation claim, but

because he lived and worked in the Fifth Circuit, he did

not.”

Second, Petitioners Cardenas-Garcia and Rasty were

retaliated against when they received proportionately less

pay raises after complaining of discrimination than other

non-minority faculty. See Pet. App. at 54a, 65a-66a. The

Fifth Circuit held that such disproportionate pay raises,

even if enacted with retaliatory motive, did not constitute

actionable retaliation because it did not constitute an

“ultimate employment action.” Pet. App. at 3a. It held that

only a complete denial of a pay increase would qualify as

an ultimate employment decision. In other circuits, a

lesser pay raise constitutes actionable retaliation. See Ray,

217 F.3d at 1243-44 (holding disproportionate reductions

in pay constituted retaliation in violation of Title VID.

Third, Petitioner Rasty suffered illegal retaliatory acts

when Respondents Marcy and Burton initiated investiga-

tions of academic dishonesty against him and complained

that Rasty was a disgruntled employee who should be denied

access to a federal research project. Pet. C.A. Br. at 26.

The district court found that the academic dishonesty

" The Fifth Circuit did not rule on whether the failure to process

Cardenas-Garcia’s grievance on accordance with established standards

constituted retaliation, but it would constitute actionable retaliation in

the Seventh Circuit. See EEOC v. Board of Governors of State Colleges

& Universities, 957 F.2d 424 (CA7 1992) (ruling that grievance process

that provided grievance could be terminated if employee sought

resolution in other forum, such as EEOC, violated anti-retaliation

provision of ADEA); Johnson v. Palma, 931 F.2d 203 (CA2 1991)

(union’s refusal to proceed with Plaintiff’s grievance after he filed race

discrimination complaint with state agency constituted unlawful

retaliation). This issue should be resolved on remand.

investigation did not have any adverse impact on Rasty’s

employment because it ultimately was dismissed (though

it completely ignored the retaliatory attempt to interfere

with Rasty’s work on explosives), Pet. App. at 59a, and the

Fifth Circuit affirmed, finding that such an investigation

is not an “ultimate employment decision.” Pet. App. at 2a.

Yet, other circuits have recognized that the mere probabil-

ity of adverse consequences can deter protected activity

such that an employee need not trace an adverse employ-

ment action to an actual harm to employment; the poten-

tial or threat of such harm suffices to establish an

employer’s liability. See Hashimoto v. Dalton, 118 F.3d 671,

676 (CA9 1997) (negative job reference in retaliation for

employment discrimination complaints constituted action-

able retaliation even where plaintiff would not have been

hired even in the absence of the negative recommenda-

tion). In such circumstances, the fact that the unlawful

action “turned out to be inconsequential goes to the issue

of damages, not liability.” Jd. at 676; see also, Levinson,

Parsing the Meaning of “Adverse Employment Action,” 56

OKLA. L. REV. at 631 (“If the action taken by the employer

is truly inconsequential, it will be difficult for an employee

to prove bias; however, where the evidence indicates that

the employer is basing its decisions on impermissible

discrimination or retaliation, liability should attach, and

the severity of the action should be addressed solely at the

remedy stage.”). And in contrast with the Fifth Circuit, the

Ninth Circuit has determined that an adverse employment

action is not expunged if an aggrieved employee is only

threatened with, or subsequently obtains a reversal of, the

retaliatory action. The retaliation or threatened retalia-

tion itself constitutes a cognizable adverse employment

action. See, e.g., Hashimoto, 118 F.3d at 676 (negative job

reference qualified as adverse employment action even

when it “turned out to be inconsequential”). Thus, had

Rasty worked in the Ninth Circuit, he would have had an

actionable claim, but because he worked in the Fifth

Circuit, his claims were dismissed under the more strict

“ultimate employment decision” standard.

This conflict is untenable. The anti-retaliation provi-

sions of the statute should not be treated differently in

different parts of the country. Either Title VII protects

employees from these types of retaliatory actions, or it

does not. Uniformity is essential on this central feature of

Title VII. Public and private employers and employees

alike are entitled to know what is the appropriate stan-

dard for determining what constitutes actionable retalia-

tion. It is an intolerable state of affairs when employees in

the Fifth Circuit are entitled to less protection for engag-

ing in protected activity under Title VII than employees in

other parts of the country, yet this circuit conflict creates

precisely this result.

D. The Fifth Circuit’s Decision Is Wrong on

the Merits and Conflicts With Decisions of

This Court.

The Fifth Circuit requires that the alleged retaliatory

act be employment related. This is not supported by the

text of the statute and conflicts with several circuits and

guidance published by the EEOC, as noted above. Title

VII’s anti-retaliation provision says nothing about requir-

ing an “adverse employment action.” This language

contrasts sharply with that of the general anti-

discrimination provision, which makes it unlawful to

discriminate with respect to an individual's “terms, condi-

tions, or privileges of employment.” See 42 U.S.C. § 2000e-

2(a\(1); see generally EEOC Compliance Manual, § 8 at 14.

Unlike the general anti-discrimination provisions, the

anti-retaliation provisions set no qualifiers on the term “to

discriminate.” Actionable retaliation therefore is not

limited to discrimination in the “terms, conditions, or

privileges of employment.” EEOC Compliance Manual, § 8

at 14. The only requirement is that “any adverse treat-

ment [be] based on a retaliatory motive and [be] reasona-

bly likely to deter the charging party or others from

engaging in protected activity.” Id. This standard excludes

“petty slights and trivial annoyances,” as such matters are

' unlikely to have a chilling effect. Id. However, it covers

retaliatory conduct that is not employment-related. See id.

at 14-15 (provisions bar “harassment in or out of the

workplace”).

Other courts have agreed with the EEOC that action-

able retaliation need not involve employment-related

conduct. In Berry v. Stevinson Chevrolet, 74 F.3d 980

(CA10 1996), for instance, the Tenth Circuit found illegal

retaliation under Title VII when the employer caused a

coworker to file a criminal complaint against an employee

who had filed a discrimination charge with the EEOC. The

Tenth Circuit observed that “a statute which is remedial in

nature should be liberally construed.” Jd. at 986 (internal

quotations and citation omitted). Similarly, in Durham

Life Insurance Co. v. Evans, 166 F.3d 139 (CA3 1999), the

Third Circuit concluded that an employer’s lawsuit

against a former employee for breach of a non-competition

agreement could constitute illegal retaliation under Title

VII. The court rejected the employer’s First Amendment

argument “in part because the prohibition on retaliation is

so explicit and the public policy behind the retaliation

provision so compelling.” Jd. at 157. The Seventh Circuit

also took a broad view of the anti-retaliation provisions in

Aviles v. Cornell Forge Co., 183 F.3d 598 (CA7 1999),

where the court held that the plaintiff had stated a valid

claim for retaliation under Title VII when he alleged that

his employer had falsely told local police that he had

threatened his supervisor with a gun. See id. at 606. The

Court noted that “the language of the Title VII retaliation

provision is broad enough to contemplate circumstances

where employers might take actions that are not ostensi-

bly employment related against a current employee in

retaliation for that employee asserting his Title VII

rights.” Id.; cf. Bill Johnson’s Restaurants, Inc. v. NLRB,

461 U.S. 731, 740, 749 (1983) (holding that employer’s

lawsuit may constitute illegal retaliation under the NLRA

and observing that “[a] lawsuit no doubt may be used by

an employer as a powerful instrument of coercion or

retaliation”). The Seventh Circuit adhered to this position

in Johnson v. Cambridge Indus., 325 F.3d 892, 902 (CA7

2003), when it stated that adverse action “will not always

be employment-related” but the employee must show “real

harm.” Ibid. (citing Herrnreiter v. Chi. Hous. Auth., 315

F.3d 742, 745-46 (CA7 2002)).

Second, even if the retaliatory act needs to have a

nexus to employment, the Fifth Circuit errs in requiring

that the act be an “ultimate employment act.” Like the

broader “employment action” requirement, the ultimate

employment decision doctrine finds no support in the

statutes. The Mattern panel, over a blistering dissent by

Judge Dennis, purported to find a statutory basis for the

doctrine by linking interpretation of Title VII’s anti-

retaliation provision, § 704(a), to interpretation of one of

the statute’s general anti-discrimination provisions,

§ 703(a)(1). See id. at 708-09. This, however, was a mis-

take. As discussed above, the anti-retaliation provision

and the general anti-discrimination provision do not use

similar language; rather, the anti-retaliation provision

broadly precludes “discriminatlion]” against an individual

because of his or her protected activity, while the anti-

discrimination provision makes it unlawful only to dis-

criminate regarding an individual’s “compensation, terms,

conditions or privileges of employment.” Compare 42

U.S.C. § 2000e-3(a) with id. § 2000e-2(a)(1). The term

“discrminate|]” means “differential treatment.” BLACK’S

Law DICTIONARY 500 (8th Ed. 2004). The lack of qualifying

language in the anti-retaliation provision therefore means

that this section provides broader coverage than the

general anti-discrimination provision.

This Court’s cases since Mattern have suggested that

even if Mattern was correct in linking interpretation of

section 704(a) to interpretation of section 703(a)(1), the

Fifth Circuit still is reaching the wrong result. Two recent

sexual harassment cases, for instance, have clarified that

the “discrimination” prohibited by section 703(a)(1) neces-

sarily refers to more than “ultimate employment deci-

sions.” In Faragher v. City of Boca Raton, 524 U.S. 775

(1998), the Court said, “We have repeatedly made clear

that although the statute mentions specific employment

decisions with immediate consequences, the scope of the

prohibition is not limited to ‘economic’ or ‘tangible’ dis-

crimination, and that it covers more than ‘terms’ and

‘conditions’ in the narrow contractual sense.” Jd. at 786

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993), and Oncale v. Sundowner Offfshore Servs., Inc.,

118 S.Ct. 998, 1001 (1998) (some internal quotations

omitted)). Thus, the Court explained, § 703(a)(1) prohibits

hostile environment sexual harassment. Jd. (citing Meritor

Savings Bank v. Vinson, 477 U.S. 57, 67 (1986)).

The Court also cast doubt on Mattern in Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). There, the

Court said that an employer is vicariously liable for a

supervisor’s sexual harassment, but that the employer

may raise an affirmative defense to liability if the harass-

ment has not resulted in a “tangible employment action.”

Id. at 765. By recognizing that section 703(aX1) prohibits

sexual harassment even when the harassment does not

result in a tangible employment action, the Court neces-

sarily rejected Mattern’s in.erpretation of the section as

covering only “ultimate emr oyment decisions.” See gener-

ally Ernest F. Lidge III, The Meaning of Discrimination:

Why Courts Have Erred in Requiring Employment Dis-

crimination Plaintiffs to Prove That the Employer's Action

Was Materially Adverse or Ultimate, 47 U. KAN. L. REV.

333, 382-84 (1999). Since Mattern was wrong in interpret-

ing section 703(a)(1) to require an ultimate employment

action, its derivative interpretation of section 704(a)

cannot stand.

Another case decided by this Court, also issued after

Mattern, confirms that the Fifth Circuit erred in restrict-

ing Title VII's anti-retaliation provision to “ultimate

employment decisions.” In Robinson v. Shell Oil Co., 519

U.S. 337 (1997), the Court held that Title VII protects

former employees from retaliation. See id. at 346. Because

an employer no longer has an employment relationship

with a former employee, it is no longer in a position to

make any “ultimate employment decisions” regarding that

individual. Indeed, in Robinson, the alleged retaliation

consisted of a negative employment reference. See id. at

337. A negative reference, standing alone, is much like a

negative performance evaluation. It is not, of itself, an

ultimate employment decision. A prospective employer

who reads the negative reference is free to ignore it. Under

Mattern, therefore, the retaliatory issuance of a negative

reference would not be cognizable. See Mattern, 104 F.3d

at 708. Nevertheless, although the Court did not rule on

the question, it gave no suggestion that issuing a negative

employment reference was insufficient to support a re-

taliation claim. The logical inference from the Court’s

unanimous opinion is that employers may be sued for

conduct that falls short of an “ultimate employment

decision.”

This Court’s emphasis on the broad reach of section

703(a\1), and its refusal to limit that section to “economic”

or “tangible” discrimination, cannot be squared with

Mattern’s holding that the provision addresses only “ulti-

mate employment decisions.” It is difficult to imagine an

action without “economic” or “tangible” consequences that

the Fifth Circuit would view as an ultimate employment

decision, yet clearly the statute covers at least some such

conduct.

Il. Certiorari Should Be Granted To Resolve The

Circuit Conflict Over What Conduct Consti-

tutes Actionable Discrimination Under 42

U.S.C. § 2000e-2.

The Fifth Circuit’s decision that discriminatory

performance review, investigations and pay raises do not

amount to “ultimate employment decisions” creates a

circuit conflict on what constitutes actionable discrimina-

tion under 42 U.S.C. § 2000e-2(a).

A. The Fifth Circuit’s Decision Is Wrong on

the Merits and Creates a Circuit Conflict.

Title VII of the Civil Rights Act of 1964 states that it

shall be an unlawful employment practice for an employer:

to fail or refuse to hire or to discharge any indi-

vidual, 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).

The Fifth Circuit’s holding in this case that a denial of

pay raise would constitute actionable discrimination, but a

discriminatory performance review that leads to a lesser

raise is not an “ultimate employment decision” cannot be

squared with the language of the statute. Pet. App. at 2a-

3a. The plain language of the statute prohibits discrimina-

tion in “compensation” and “terms and conditions and

privileges of employment.” It is not limited to denials of

pay.

The Fifth Circuit’s decision also conflicts with a recent

decision from the Eleventh Circuit. Relying on the plain

language in the statute that prohibits an employer to

discriminate against an individual with respect to “com-

pensation” based on race or national origin, the Eleventh

Circuit has held “that an evaluation that directly disen-

titles an employee to a raise of any significance is an

adverse employment action under Title VII.” See Gillis v.

Georgia Dep't of Corrections, et al.,__ F.3d ___, 2005 U.S.

App. LEXIS 2924, at *15; Case No. (CA11 Feb. 18, 2005).

Thus, had Cardenas-Garcia and Rasty worked in the

Eleventh Circuit, they would have had actionable dis-

crimination claims, but because they worked in the Fifth

Circuit they do not. Having employee’s right determined by

where they live, rather than by a uniform standard set by

congress as interpreted by this Court, is untenable. This

Court should grant certiorari to resolve this circuit split.

B. Review Is Warranted Because The Deci-

sion Below Conflicts With This Court’s

Decision in Bazemore v. Friday.

Certiorari is also warranted because the Fifth Cir-

cuit’s holding is contrary to this Court’s decision in

Bazemore v. Friday, 478 U.S. 385 (1986), in which the

Court held that discriminatory pay differences between

employees based on race constituted actionable discrimi-

nation, even if such pay discrepancies started before the

effective date of Title VII. Ibid., at 395-96 (“[e]ach week’s

paycheck that delivers less to a black than to a similarly

situated white is a wrong actionable under Title VII,

regardless of the fact that this pattern was begun prior to

the effective date of Title VII.”). The Court’s opinion was

not limited solely to a denial of pay raises — it struck at the

heart of all compensation decisions and requires similarly-

situated employees not to be discriminated against in each

pay check.

Yet, under the Fifth Circuit’s holding, similarly-

situated employees can be discriminated against in each

paycheck by granting discriminatory raises, so long as

they are not denied a raise. This is contrary to the

Bazemore decision. To allow the Fifth Circuit’s decision to

stand would allow employers to discriminate against

whole groups of employees based on race, national origin

or other protected characteristics by giving them a $1

raise, while granting other groups of employees more

substantial raises. Thus, discriminatory compensation

decisions actually would grow over time. This cannot

comport with Congressional intent on enacting Title VII.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

LEvI G. MCCATHERN JOHN R. ATES

TISHA LYNN DODGE (Counsel of Record)

McCATHERN MOoTy ALBO & OBLON, L.L.P.

3710 Rawlins 2200 Clarendon Blvd.

Dallas, Texas 75219 Arlington, Virginia 22201

(703) 562-3385

March 14, 2005

App. 1

UNITED STATES COURT OF APPEALS

for the Fifth Circuit.

No. 04-10224

JAIME CARDENAS-GARCIA; JAHAN RASTY,

Plaintiffs-Appellants,

VERSUS

TEXAS TECH UNIVERSITY; THOMAS BURTON,

individually and in his official capacity as Chair of the

Mechanical Engineering Department at Texas Tech

University; and WILLIAM MARCY, individually and

in his official capacity as Associate Dean and later Dean

of the College of Engineering at Texas Tech University,

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Texas

03-CV-029-C

(Filed December 14, 2004)

Before REAVLEY, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

* 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.

App. 2

Appellants Jaime Cardenas-Garcia (Cardenas-Garcia)

and Jahan Rasty (Rasty) sue their former employer, Texas

Tech University (TTU) and their former supervisors,

Thomas Burton (Burton) and William Marcy (Marcy), both

in their individual and official capacities, under Title VII

and 42 U.S.C. §§ 1981 and 1983 for employment discrimi-

nation based on national origin and retaliation. The

district court dismissed both plaintiffs’s claims against all

defendants. We affirm for the following reasons.

In plaintiffs’ actions against TTU under Title VII and

against Burton and Marcy under § 1981, plaintiffs failed

to produce summary judgment evidence from which a

factfinder could infer that either plaintiff suffered an

adverse employment action at the hands of any defendant.

Proof of an adverse employment action is a requisite

element of the plaintiffs’ prima facie cases of discrimina-

tion and retaliation under both Title VII and § 1981.

Plaintiffs allege that poor performance reviews and

disciplinary investigations constitute adverse employment

actions. Under our jurisprudence, an adverse employment

action means an ultimate employment decision, such as

hiring, granting leave, discharging, promoting and com-

pensating. See Foley v. University of Houston System, 355

F.3d 333, 340 (5th Cir. 2003). Performance reviews and

investigations, therefore, do not qualify as ultimate

employment actions.

* See Order of the District Court, R. 01643 (laying out the prima

facie case for national origin discrimination/disparate treatment under

Title VII), R. 01645 (detailing the prima facie case for retaliation under

Title VII), and Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000)

(Stating that both § 1981 and Title VII are analyzed under the Title VII

evidentiary framework).

App. 3

Plaintiffs, do, however, also argue that they both

received proportionately lesser pay increases than did

other, Anglo professors on the faculty. While this court has

held that a complete denial of a pay increase may qualify

as an ultimate employment decision, we have never held

that a proportionately lesser pay increase, where an

increase was received every year, could fulfill the require-

ment. See Fierros v. Texas Department of Health, 274 F.3d

187, 193 (5th Cir. 2001).

For the above reasons, we AFFIRM the district court’s

grant of summary judgment in favor of all defendants.

App. 4

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

JAIME CARDENAS-GARCIA )

AND JAHAN RASTY, )

ze )

— -) Civil Action No.

Vv. ) 5:03-CV-029-C

TEXAS TECH UNIVERSITY, ‘

Defendant. )

ORDER

(Filed Jan. 22, 2004)

On this date the Court considered Texas Tech Univer-

sity’s (“Defendant TTU”) Motion for Summary Judgment

filed December 15, 2003. Plaintiffs’ Response to Defendant

TTU’s Motion was filed January 6, 2003, by Jaime

Cardenas-Garcia (“Plaintiff Cardenas-Garcia”) and Jahan

Rasty (“Plaintiff Rasty”) (collectively “Plaintiffs”). Defen-

dant TTU filed its Reply on January 15, 2004. After

considering all the relevant arguments and evidence, this

Court GRANTS Defendant TTU’s Motion for Summary

Judgment.

FACTUAL BACKGROUND

Plaintiffs allege employment discrimination based on

their national origins, hostile working environment, and

retaliation. Plaintiffs claim they suffered salary disparity,

ethnic slurs, and other acts of discriminatory treatment at

App. 5

the hands of the Chair of Defendant Texas Tech Univer-

sitys Department of Mechanical Engineering (Defendant

Burton), the Associate Dean/Dean of Defendant TTU’s

College of Engineering (Defendant Marcy), and Defendant

TTU.

Plaintiffs bring suit against Defendants for alleged

national origin discrimination, harassment, and retalia-

tion under both Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seg. (“Title VII”) and under 42 U.S.C.

§ 1981; and for violations of Plaintiffs’ due process rights

under 42 U.S.C. § 1983.

Plaintiffs seek declaratory relief, injunctive relief,

actual damages, exemplary damages, prejudgment inter-

est, postjudgment interest, attorneys’ fees, and such other

relief as this Court deems just.

The Court adopts the factual background contained in

its order of summary judgment relating to qualified

immunity; and for the sake of brevity, it need not be

repeated again here.

II.

PROCEDURAL BACKGROUND

On May 15, 2003, Plaintiffs sought leave of this Court

to amend their complaint and add Defendants Burton and

Marcy as named defendants. The Court granted the

request and Plaintiffs’ First Amended Complaint was filed

June 6, 2003. Defendants’ First Amended Answer and

Affirmative Defenses was filed June 18, 2003. Defendant

Texas Tech’s Partial Motion to Dismiss was granted by an

order from this Court on August 6, 2003, which dismissed

Plaintiffs’ claims against Defendant Texas Tech based on

App. 6

§§ 1981 and 1983 as being barred by the Eleventh

Amendment. Defendants Burton and Marcy filed their

Motion for Summary Judgment on October 17, 2003.

Plaintiffs filed their Response on November 6, 2003.

Defendants Burton and Marcy filed their Reply on No-

vember 21, 2003. This Court granted Defendants Burton’s

and Marcy’s motion based upon limitations and qualified

immunity in an Order dated January 20, 2004. As stated

above, Defendant TTU filed the motion now before the

Court on December 15, 2003. Plaintiffs’ Response to

Defendant TTU’s Motion was filed January 6, 2003.

Defendant TTU filed a Reply on January 15, 2004.

I II .

STANDARD

Summary judgment is appropriate only if “the plead-

ings, depositions, answers to interrogatories, and admis-

sions on file, together with the affidavits, if any,” when

viewed in the light most favorable to the non-moving

party, “show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986) (internal quotations omit-

ted). A dispute about a material fact is “genuine” if the

evidence is such that a reasonable jury could return a

verdict for the non-moving party. Jd. at 248. In making its

determination, the court must draw all justifiable infer-

ences in favor of the non-moving party. Id. at 255.

Once the moving party has initially shown “that there

is an absence of evidence to support the nonmoving party’s

case,” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986),

the non-movant must come forward, after adequate time

App. 7

for discovery, with significant probative evidence showing

a triable issue of fact. FED. R. Civ. P. 56(e); State Farm Life

Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990).

Conclusory allegations and denials, speculation, improb-

able inferences, unsubstantiated assertions, and legalistic

argumentation are not adequate substitutes for specific

facts showing that there is a genuine issue for trial.

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428

(5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097

(5th Cir. 1993). Affidavits, or portions thereof, that are not

based on personal knowledge or that are based merely on

information and belief cannot be considered in deciding a

motion for summary judgment. Richardson v. Oldham, 12

F.3d 1373, 1378-79 (5th Cir. 1994). To defeat a properly

supported motion for summary judgment, the non-movant

must present more than a mere scintilla of evidence. See

Anderson, 477 U.S. at 251. Rather, the non-movant must

present sufficient evidence upon which a jury could rea-

sonably find in the non-movant’s favor. Jd. The court will

not, “in the absence of any proof, assume that the non-

moving party could or would prove the necessary facts.”

McCallum Highlands v. Washington Capital Dus, Inc., 66

F.3d 89, 92 (5th Cir. 1995), as modified, 70 F.3d 26 (5th

Cir. 1995).

A moving party may meet the burden of proving no

genuine issue of material fact by showing there is an

absence of evidence to support the non-moving party’s

case. Celotex, 477 U.S. at 325. It is the non-moving party’s

burden to show triable issues of fact as to matters on

which it bears the burden of proof at trial. A complete

failure to prove an essential element of a non-moving

party’s case renders all other facts immaterial. Jd. at 323.

However, it is not enough to make conclusory allegations

App. 8

that the opposing party has no evidence. Id. at 326; Ashe v.

Corley, 992 F.2d 540, 543-44 (5th Cir. 1993). The moving

party must identify the specific issue or issues on which it

claims the opposing party has no supporting evidence and

demonstrate that absence. For example, a moving party

may offer admissions and responses to discovery to prove

there is no genuine issue of material fact. See Fontenot v.

Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986).

Finally, in reviewing the summary judgment evidence,

“Rule 56 does not impose upon this Court a duty to sift

through the record in search of evidence to support a

party's opposition to summary judgment” Ragas v. Tenn.

Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Nor

does a court have a duty to search the record for triable

issues. Id. Rather, the Court need rely only on those

portions of the submitted documents to which the nonmov-

ing party directs the Court’s attention. Jd. The party

opposing summary judgment is required to articulate the

precise manner in which the evidence supports his or her

claim. Jd. Moreover, Local Rule 56.5(c) expressly requires

that a party filing an appendix “must include in its brief

citations to each page of the appendix that supports each

assertion that the party makes concerning the summary

judgment evidence.”’ A party may not rely upon “unsub-

stantiated assertions” as competent summary judgment

evidence. Id. at 458.

* The Court was unable to locate some of appendix material cited

to by Plaintiffs. The Court double checked its copy of Plaintiffs’

Appendix to Brief in Opposition with the original filed with the Clerk’s

office and both contained the same errors. It appears that some tabs

were missing, some tabs were out of order, and some materials were

missing.

App. 9

IV.

DISCUSSION

As stated in this Court’s prior order of August 6, 2003,

“[t]his Court has long held that Defendant TTU is an arm

of the State of Texas and, thus, Defendant TTU is, and its

individual officials sued in their official capacities are,

immune under the Eleventh Amendment to monetary

suits based on §§ 1981 and 1983.” See Henry v. Tex. Tech

Univ., 466 F.Supp. 141, 146 (N.D. Tex. 1979). Thus,

Plaintiffs’ contention that Defendant TTU did not specifi-

cally address Plaintiffs’ due process allegations in Defen-

dant’s Motion for Summary Judgment are somewhat

puzzling. Plaintiffs’ claims for due process violations must

be brought against state actors through § 1983. See 42

U.S.C. § 1983. As stated, this Court previously dismissed

Plaintiffs’ claims for monetary damages against Defendant

TTU based on § 1983; thus, the Court need not address

Plaintiffs’ contention that Defendant did not address those

claims.

However, the Court is well aware that Plaintiffs’

Amended Complaint also seeks declaratory and injunctive

relief for alleged violations of Plaintiffs’ due process rights.

Defendant TTU addressed these claims in its Reply to

Plaintiffs’ Response. Because this Court previously found

that no violations of Plaintiffs’ due process rights had

occurred through the Defendants Burton and Marcy,

logically there can be no declaratory or injunctive relief

required. The State, or a subdivision thereof (such as

Defendant TTU), can act only through its employees. See

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762-65

(1998) (employer is liable for any — actions by

its supervisors).

App. 10

As to Plaintiffs’ procedural due process claims, “[t]he

constitutional right to due process is not, however, an

abstract right to hearings conducted according to fair

procedural rules. Rather, it is the right not to be deprived

of life, liberty, or property without such procedural protec-

tions.” Monk v. Huston, 340 F.3d 279, 282-83 (5th Cir.

2003); see Baldwin v. Daniels, 250 F.3d 943, 946 (5th

Cir. 2001) (“To bring a procedural due process claim

under § 1983, a plaintiff must first identify a protected

life, liberty or property interest and then prove that

governmental action resulted in a deprivation of that

interest.”). The Court previously found in its prior order

related to qualified immunity that 1) neither Plaintiff

suffered the deprivation of a protected interest and 2) no

deprivation occurred without procedural protections.’

* Plaintiff Rasty complains of alleged procedural due process

violations. As stated in this Court’s prior order on qualified immunity,

Rasty’s constitutional due process rights were not violated.

As [to] the UTAC’s discussion of possible bias by the Provost

and others in the process, appearance of bias by faculty

members who recommend termination of tenured professor

does not violate due process rights. Levitt v. Univ. of Texas

at El Paso, 759 F.2d 1224 (5th Cir. 1985).... Moreover,

there is not a violation of due process every time a univer-

sity violates its own rules and procedures unless the action

violates federal constitutional grounds. See Levitt, 759 F.2d

1224; Brown v. Texas A&M Univ., 804 F.2d 327 (5th Cir.

1986) (failure of a state agency to comply with its internal

regulations is insufficient to establish a violation of due

process).... Finally, because of the multiple layers of proc-

ess provided to Rasty, the Court finds that the risk of erro-

neous deprivation of his job was minimal. The low risk of an

erroneous final decision being made “further erodes [a

plaintiff's) claim that he deserved more process.” Williams v.

Texas Tech Univ. Health Sciences Ctr., 6 F.3d 290, 293 (5th

Cir. 1993) (a district court properly grants summary judg-

ment on all procedural due process claims upon a finding

(Continued on following page)

App. 11

Beyond Plaintiffs’ speculation that their respective com-

plained-of incidents involved a deviation from fair proce-

dural rules, they have not shown a constitutional violation

of due process. Nor have they shown a substantive due

process violation.

In Plaintiffs’ Response, they also complain that

Defendant’s motion failed to address other facts imputing

liability. However, Defendant TTU’s Motion for Summary

Judgment addressed only those claims that Defendant

perceived as possibly occurring within the applicable

limitations period.’ Plaintiffs also assert that Defendant

that the risk of erroneous deprivation is minimal). In any

event, this Court finds that Plaintiff Rasty received all the

process due him.

Order filed Jan. 20, 2004, p. 43-44.

Plaintiff Rasty also complains of substantive due process violations in

the amount of his pay raises. Cardenas-Garcia did not specifically plead

such a cause of action, but even if he had, no violation exists for either

Plaintiff. Plaintiff did receive pay raises, he simply contends that the

amounts were inadequate. Moreover, there is a limitations problem for

any pay raises given more than two years prior to the filing of this suit.

A dispute over the quantum of pay increases is not actionable, espe-

cially when nothing in the record shows that the defendant was

obligated to give the same dollar amount or same percentage increase

to each professor. See Harrington, 118 F.3d at 366; see also Williams, 6

F.3d at 293 (a professor's interest in a specific level of income does not

outweigh the state’s significant interest in having reasonable discre-

tion). Order filed Jan. 20, 2004, p. 46-47.

* Most of the complained-of “ignored factual scenarios” were

previously found by this Court to (1) have been time-barred or (2) have

not been actionable due to Plaintiffs’ failure to make a prima facie case

or overcome proffered nondiscriminatory reasons. Additionally,

conclusory allegations without adequate support in the record are not

competent summary judgment evidence and thus need not be addressed

by the Defendant.

(Continued on following page)

App. 12

failed to address whether Plaintiff Cardenas-Garcia was

constructively discharged. This Court has previously found

in its prior order relating to qualified immunity that

Plaintiff Cardenas-Garcia was not constructively dis-

charged; thus, Defendant need not have addressed this

issue in its motion for summary judgment‘ As to Plaintiffs’

other assertions in their response to Defendant’s motion,

this Court has already addressed those allegations as well

in its prior order. Thus, pursuant to the prior discussion on

those matters and this Court’s prior findings, the Court is

of the opinion that summary judgment is proper.

Plaintiffs also brought allegations of Title VII viola-

tions by Defendant. This Court has previously determined

that Plaintiffs either (1) failed to make a prima facie

showing of discrimination, hostile work environment, or

retaliation that would be actionable,’ or (2) failed to

overcome legitimate, nondiscriminatory reasons for the

This Court has found in its prior order relating to qualified

immunity that the continuing-violation doctrine is not applicable to the

circumstances of this case.

* Plaintiff Cardenas-Garcia complains that he suffered constructive

discharge. This Court reiterates its prior finding that Plaintiff has

offered no competent summary judgment evidence to support his claims

of constructive discharge. Plaintiff Cardenas-Garcia testified that after

his sabbatical, he made no effort whatsoever to return to work for

Defendant TTU, but instead took a higher-paying job at the University

of Maryland. The circumstances do not show that Plaintiff had found

conditions so intolerable that he felt compelled to resign. This Court

finds that conditions were not so intolerable that a reasonable employee

would feel compelled to resign. Brown v. Kinney Shoe Corp., 237 F.3d

556, 566 (5th Cir. 2001).

* This Court is not persuaded that Plaintiffs suffered an adverse

employment action as required by the prima facie elements of discrimi-

nation. See Mota v. Univ. of Tex. Houston Health Science Ctr., 261 F.3d

512, 519 (5th Cir. 2001).

App. 13

alleged conduct. Because this Court’s prior discussion in

its order on qualified immunity found that there were no

violations for discrimination, hostile work environment, or

retaliation under § 1981, it stands to reason that there can

be no violations under Title VII. See Flanagan v. Aaron E.

Henry Cmty. Health Servs. Ctr., 876 F.2d 1231, 1233 (5th

Cir. 1989) (elements of claims alleging violations of § 1981

and Title VII are identical); Walker v. Thompson, 214 F.3d

615, 625 (5th Cir. 2000) (employment discrimination

claims brought under § 1981 are analyzed under the same

evidentiary framework as Title VII claims).

CONCLUSION

For the stated reasons above, after considering all the

arguments and evidence, and because the Court finds the

arguments raised in Defendant TTU’s motion to be merito-

rious and well-taken, the Court GRANTS Defendant

Texas Tech University’s Motion for Summary Judgment.

SO ORDERED this 22nd day of January, 2004.

/s/ Sam R. Cummings

SAM R. CUMMINGS

UNITED STATES DISTRICT

JUDGE

App. 14

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

JAIME CARDENAS-GARCIA

and JAHAN RASTY,

Plaintiffs,

TEXAS TECH UNIVERSITY;

THOMAS BURTON, individually

and in his official capacity as Chair

of the Mechanical Engineering

Department at Texas Tech University;

and WILLIAM MARCY, individually

and in his official capacity as Associate

Dean and later Dean of the College of

Engineering at Texas Tech University,

)

) Civil Action No.

Defendants. ) 5:03-CV-029-C

ORDER

(Filed Jan. 20, 2004)

On chis date the Court considered Defendants Thomas

Burton (“Defendant Burton”) and William Marcy’s (“De-

fendant Marcy”) (collectively “Individual Defendants”)

Motion for Summary Judgment and Brief in Support filed

October 17, 2003. Plaintiffs’ Response was filed November

6, 2003, by Jaime Cardenas-Garcia (“Plaintiff Cardenas-

Garcia” or “Cardenas-Garcia”) and Jahan Rasty (“Plaintiff

Rasty” or “Rasty”) (collectively “Plaintiffs”). After consider-

ing all the relevant arguments and evidence, this Court

GRANTS the Individual Defendants’ Motion for Summary

Judgment.

App. 15

FACTUAL BACKGROUND

Plaintiffs allege employment discrimination based on

their national origins, hostile working environment, and

retaliation. Plaintiffs claim they suffered salary disparity,

ethnic slurs, and other acts of discriminatory treatment at

the hands of the Chair of Defendant Texas Tech Univer-

sitys (“TTU”) Department of Mechanical Engineering

(Defendant Burton), the Associate Dean/Dean of Defen-

dant TTU’s College of Engineering (Defendant Marcy), and

Defendant TTU.

Plaintiffs bring suit against Defendants for alleged

national origin discrimination, harassment, and retalia-

tion under both Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seg. (“Title VII”) and under 42 U.S.C.

§§ 1981; and for violations of Plaintiffs’ due process rights

under 42 U.S.C. § 1983.

Plaintiffs seek declaratory relief, injunctive relief,

actual damages, exemplary damages, prejudgment inter-

est, postjudgment interest, attorneys’ fees, and such other

relief as this Court deems just.

In their Motion for Summary Judgment, Defendants

state certain grounds for summary judgment. Specifically,

Individual Defendants Burton and Marcy seek summary

judgment based on limitations and qualified immunity.

The Individual Defendants state that “Plaintiffs have sued

Individual Defendants alleging retaliation, national origin

discrimination and due process deprivations pursuant to

§§ 1981 and 1983. The Individual Defendants assert that

most of the incidents alleged by Plaintiffs took place

outside of the statute of limitations.” See Det. M. at 1.

App. 16

Defendants Burton and Marcy go on to state that “[t]hose

incidents should be dismissed for that reason alone.” The

Individual Defendants further claim that “[e]ach Plaintiff

has failed to assert a violation of a clearly established

constitutional right by either of the Individual Defendants,

and both have failed to establish that the alleged actions

were not objectively reasonable under the standards set

forth by the Fifth Circuit.” This second defense is a de-

fense based on qualified immunity. Within the second

defense of qualified immunity, the Individual Defendants

in their Reply also appear to assert that Plaintiffs have

failed to make their prima facie case of discrimination and

have not shown the reasons advanced by the Defendants

to be pretextual.

Plaintiff Cardenas-Garcia

Plaintiff Cardenas-Garcia is a foreign-born (Ecuador-

ian) citizen of the United States formerly employed by

Defendant TTU as a tenured full professor in Defendant

TTU’s Mechanical Engineering Department (“MED”). He

began working in the MED in 1988 as an assistant profes-

sor. In 1989, Cardenas-Garcia received a monetary award

and recognition for teaching effectiveness. He alleges that

an Anglo professor received a different and larger award

from the same committee. In 1991, Cardenas-Garcia

received a three-year evaluation which he disagreed with

because, in his opinion, it contained subjective opinions.

Cardenas-Garcia believed the evaluation he received was

tied to his national origin, but he presented no evidence to

support his conclusion. In 1993, Cardenas-Garcia applied

for and was granted tenure.

App. 17

In 1995, Defendant Burton was hired as Chair of

MED. Plaintiffs allege that Burton made a statement

during his interviews for the position that one of the

weaknesses of the graduate program was that it had a

large percentage of foreign students and that he repeated

the statement on two other occasions, one of which was in

a memo sent on March 24, 1998, to all the faculty within

the department. However, the memo does not actually

refer to foreign students but rather only states a goal of

improving the reputation te a level that would allow the

department to attract quality U.S. Ph.D. students.

Cardenas-Garcia concedes in his deposition that there is

nothing inherently discriminatory in such a statement.

Also in 1998, Cardenas-Garcia applied for and was

promoted to the status of full professor. Cardenas-Garcia,

however, believes he was treated differently in getting his

promotion, even though he did in fact receive the promo-

tion and a salary increase. Cardenas-Garcia alleges that

Defendant Burton did not support him in his promotion

with regard to letters of recommendation. However,

Plaintiff Cardenas-Garcia provides no evidence to show

that Defendant Burton was required to write letters of

recommendation for anyone or that Burton owed

Cardenas-Garcia some type of duty in that regard.

Cardenas-Garcia allegedly filed an internal grievance

in either 1999 or 2000 relating to his annual review, which

consisted of such criteria as research, teaching, and

service. He believed his teaching was not credited enough.

The record reveals that Cardenas-Garcia’s teaching

evaluations turned in by the students consistently gave

him low marks, well below the average.

App. 18

He also filed an EEOC complaint in 2000 alleging

discrimination and retaliation. He alleges that similar

teaching evaluations led to different results. Another

Anglo faculty member who also had low student evalua-

tions (though not as low as Cardenas-Garcia’s) received a

better annual evaluation. The Defendants assert that the

Anglo faculty member’s more favorable evaluation was

based in large part on his research, publications, and the

raising of research funding for the department. At some

point in time following the poor evaluation, Cardenas-

Garcia was assigned two new classes to teach. He contends

that Defendant Burton would not have given the new

assignments if his teaching was in fact of poor quality.

However, the Defendants assert that such assignments

had nothing to do with Plaintiff’s teaching ability but

rather the new class assignments occurred because of class

shifting and schedule changes that often happen in uni-

versity settings.

In 1999 another faculty member was alleged to have

made the statement: “This department is a lumpy melting

pot. I will reject all candidates whose names I cannot

pronounce. Just kidding.” Cardenas-Garcia alleges that he

reported the statement to Defendant Burton because

Burton was the Chair of the Department. Following

Cardenas-Garcia’s complaint to Burton, an EEO officer

and the Associate Provost were present at the next meet-

ing, presumably at Defendant Burton’s request, and they

informed the faculty members that such comments were

inappropriate. Cardenas-Garcia admits to being pleased

with the response. Cardenas-Garcia further alleges that

the same professor received a better evaluation in his

annual review than Cardenas-Garcia. Burton included a

comment in Cardenas-Garcia’s annual evaluation that

App. 19

Cardenas-Garcia caused “unnecessary disputes between

himself and other committee members, resulting in

unnecessary impediments to the search process.”

Cardenas-Garcia felt this statement was _ subjective,

unwarranted, and in retaliation for his reporting the

“lumpy melting pot” comment by the other faculty mem-

ber. No evidence was presented to support Cardenas-

Garcia’s subjective belief.

Cardenas-Garcia also complains of comments alleg-

edly made two or three times over the years by another

faculty member beginning in the early 1990’s. Cardenas-

Garcia alleges that the faculty member at meetings would

state, “This is the white section,” in reference to seating.

Some faculty members thought the comment to be a joke.

Deposition testimony states that the statements were

regarded as occurring sporadically only a few times over

the years. Moreover, no evidence was presented that

shows how Defendant Burton was involved in or made

aware of the statements. Nor was any evidence presented

to show how Defendant Marcy may have been involved in

or made aware of those statements.

A different faculty member is also alleged to have

stated in 1995 that “minorities take jobs from white men”

during a committee meeting. Cardenas-Garcia alleges that

this statement was made in front of Defendant Burton.

The record reveals that the faculty member was voicing

his opinion in opposition to affirmative action after a

question was posed to him on the subject.

Plaintiff Cardenas-Garcia alleges that the Defendants

violated his due process rights and discriminated against

him by delaying the grievance procedure which he had

filed against Defendant Burton. The grievance, apparently

App. 20

filed in 2000, dealt with issues regarding Cardenas-

Garcia’s annual review, salary, and alleged discrimination.

The proceedings were put on hold in order to give media-

tion and/or settlement prospects an opportunity to work.

Defendants counter that Defendant Marcy offered to cover

the mediation fee out of departmental funds. Several e-

mails were sent between the parties regarding mediation

of the grievance. Also during this period, Cardenas-Garcia

was out of the state on sabbatical to the University of

Maryland. The record reveals that Cardenas-Garcia

accepted employment at the University of Maryland and

never actually returned to teach at Texas Tech. The record

further shows that the parties tried to negotiate a media-

tion setting, but the Defendants allege that Cardenas-

Garcia left the state before the mediation could be set up.

There was disagreement as to where to conduct the

mediation and what allegations would be mediated.

Cardenas-Garcia felt he could not get a fair mediation in

west Texas because of the allegedly discriminatory atmos-

phere. Defendant Burton refused to mediate the discrimi-

nation allegation, instead agreeing only to mediation of

the annual review and salary issues. The Defendants

contend that Cardenas-Garcia never let them know that

he wished to continue the grievance and that they believed

the matter to be moot because Cardenas-Garcia had been

absent during the period and never actually returned to

teach at Texas Tech University.

Plaintiff Cardenas-Garcia resigned from Texas Tech at

the beginning of the fall 2002 semester and began teach-

ing at the University of Maryland for approximately

$10,000.00 more per year. While at Texas Tech, Cardenas-

Garcia never received a pay cut; nor does he complain of

failure to receive pay raises given in years when budget

App. 21

constraints did not prevent pay raises. Cardenas-Garcia

only complains that he believes he did not receive an

adequate amount of pay raise when given and alleges the

reasons for his lower pay raises were discriminatory; the

Defendants claim the reasons consisted of valid perform-

ance issues. Cardenas-Garcia’s position at the University

of Maryland is currently not tenured.

Plaintiff Rasty

Plaintiff Rasty is a foreign-born (Iranian) citizen of

the United States who is currently employed by Defendant

TTU as a tenured professor in Defendant TTU’s MED. For

the period 1988 through 1995, Plaintiff Rasty does not

believe that he was subjected to any type of discrimination

at Texas Tech.

In 1994, Rasty was one of the professors in the MED

who signed a letter of no confidence in the former Chair of

the MED. Plaintiffs allege that when the former Chair

stepped down, he stated that he felt “betrayed” and that

“there are some Middle-Eastern minds in this department

who have to be dealt with.” Defendant Marcy was the

person responsible for finding a new Chair of the MED.

Plaintiffs allege that Defendant Marcy allegedly told

Defendant Burton (who was selected as the new Chair) to

clean up and take control of the MED. In a subsequent

grievance hearing, Rasty alleges that Defendant Marcy

accused him and two other foreign-born, minority profes-

sors of being responsible for the bad atmosphere within

the MED.

Plaintiff Rasty complains of some of the same inci-

dents complained of by Plaintiff Cardenas-Garcia. As

stated above, Plaintiffs allege that Defendant Burton

App. 22

stated on three occasions that a weakness of Texas Tech’s

graduate program was that it had a large percentage of

foreign students. Rasty also complains of the statements

made by an Anglo faculty member in 1999 that “[t]his

department is a lumpy melting pot.... I will reject all

candidates whose names I cannot pronounce. Just kid-

ding.” Rasty admits in his deposition that he does not

know if the professor was ever actually reprimanded or

not. However, as stated above, the record reveals that

Defendant Burton, once complained to by Plaintiff

Cardenas-Garcia, did in fact have the comment addressed

by the Assistant Provost and an EEO officer at the next

meeting. Rasty further admitted in his deposition that he

does not have any evidence that would show Defendant

Marcy was aware of the comments, nor did Rasty ever

complain about the comments. Rasty, like Cardenas-

Garcia, also complains of another faculty member’s com-

ment related to affirmative action that “women and

minorities take jobs from white men.” Rasty alleges that

this professor made the comment to him on other occa-

sions. However, Rasty admits in his deposition that a

professor is entitled to his opinion on the subject of af-

firmative action.

In 1996, Plaintiff Rasty traveled to France to present

a paper at a symposium. Rasty alleges that he purchased

an excursion rate ticket that had a value of $0 printed on

the receipt. When Rasty returned from the symposium, he

requested $1,600.00 in reimbursement for his airfare to

France. Rasty alleges that he paid $1,600.00 for the ticket.

Rasty submitted travel reimbursement forms for expenses

that were not documented. Burton refused to reimburse

Rasty. Plaintiff Rasty filed a grievance against Burton

in the belief that Defendant Burton was treating him

App. 23

unfairly not only in the reimbursement incident but also

in salary increases. A committee was convened and Rasty

was allowed to put on evidence. The grievance committee

determined that Rasty should be reimbursed for meals

and hotel expenses but not for the airline ticket. Rasty’s

deposition reveals that the grievance committee also

determined that no evidence existed to support the allega-

tions that Defendant Burton was treating him unfairly in

regard to salary increases or in regard to travel reim-

bursements for which expenses could not be verified. The

committee also found against Rasty on the issues of

harassment, damages to his reputation, and whether there

was an unhealthy atmosphere in the department. Rasty

believes, however, that he “won” the grievance hearing.

Burton later that same year also gave Rasty a poor per-

formance evaluation and in the evaluation accused Rasty

of unethical practices in relation to his submission of

travel reimbursements. Rasty complains that the per-

formance evaluation was never changed to remove the

reimbursement issue from his personnel file. However, the

record reveals that Rasty did not actually “win” on all of

the issues before the committee relating to the travel

incident.

In an apparent disparate treatment context, Rasty

alleges that another Anglo-American professor received

lenient treatment in relation to his travel reimbursement

discrepancies relating to a conference in 1997, contending

that the professor did not attend two days of a conference

for which he claimed reimbursement, and that Burton

allowed that professor to revise his forms without refer-

encing the incident in his annual performance review. No

evidence was presented, however, to show how that profes-

sor was in a position nearly identical to that of Rasty.

App. 24

Actually, Rasty admitted in his deposition that he is

unaware of whether the Anglo-American professor had a

similar airline ticket that he was trying to get reimbursed

for. Rasty is also unaware of the exact circumstances

surrounding the Anglo-American professor’s incident.

Rather, Rasty simply makes a conclusory statement

suggesting both circumstances were nearly identical.

In another incident in April of 1999, Burton contacted

the then Dean of Engineering, Defendant Marcy, and

notified him that Plaintiff Rasty had repeatedly made

false statements regarding scholarly publications over the

years. Defendant Marcy requested Rasty to resolve the

issue by providing documentation before a formal investi-

gation. Rasty e-mailed Defendant Marcy stating several

reason why he believed the publications might have been

incorrectly listed in university documents but did not

admit to any wrongdoing. Defendant Marcy later recom-

mended to Texas Tech’s Vice-President of Research and to

Defendant Burton that a formal investigation be con-

ducted to resolve the matter. Rasty believes that it was

improper for Defendant Marcy to determine that Rasty

was possibly guilty and to recommend further investiga-

tions. A committee of non-departmental faculty was

impaneled. Neither of the Individual Defendants was on

the committee. It is also alleged that Defendant Burton

“conspired” with the chair of the investigative committee

by having private, informal meetings with the committee

chair allegedly to “avoid written documentation that would

be required to be released to Rasty.” The investigative

committee conducted several hearings. Rasty and Defen-

dant Burton both testified at the hearings. Rasty was

allowed to put on evidence at the hearings but complains

that time restrictions and page limits were imposed upon

App. 25

him. Rasty does not recall the exact page limit and time

limit imposed upon him but states in his deposition that

he believes the page limit could have been “something like

[a] 25-page limit.” The committee issued findings in March

of 2000, determining that Rasty had engaged in deliberate

falsification in the reporting of research publications and

submissions over a prolonged period. The committee

recommended that termination proceedings be initiated.

Plaintiff Rasty first appealed the decision to the Provost,

who denied his appeal and instead recommended the

initiation of termination proceedings. Rasty believes that

the Provost was biased.’ Rasty further appealed the

committee’s findings to the University Tenure Advisory

Committee (“UTAC”) as allowed by University policies to

tenured professors. The UTAC conducted additional

hearings and allowed Rasty to provide all the documents

and testimony he wished to produce at the hearings. In

August of 2001, the UTAC issued its findings and deter-

mined that Rasty had not engaged in academic misconduct

under the cited University policy he had been charged

under. However, the UTAC did state that “faculty should

meet higher standards of accuracy than Dr. Rasty has

demonstrated, but we do not believe his failure in this

regard is adequate cause for termination.”

The UTAC recommended against filing formal charges

to terminate Rasty and determined that he had been

denied due process at certain stages of the investigation. It

is not clear if the UTAC determined Rasty had been

’ Rasty believed the Provost to be biased because Defendant Marcy

had written the Provost regarding an earlier allegation in 1999 (see

below) addressing concerns related to one of Rasty’s research projects

involving explosives; the Provost declined to act against Rasty.

App. 26

denied process under Texas Tech’s policies. Formal charges

to terminate Rasty have never been filed during his tenure

at Texas Tech, nor has he ever been suspended. On Janu-

ary of 2002, University President David Schmidley, who

had the final say in the matter, informed Rasty by letter

that he had decided not to initiate formal termination

proceedings. However, Rasty believes that the University

President did not completely exonerate Rasty of miscon-

duct. The letter was placed in Rasty’s personnel file. The

University President also requested a meeting with Rasty.

Rasty alleges that his request to have counsel present at

the meeting was denied. In May of 2002, Rasty went to

meet with the University President and was accompanied

by a Texas Faculty Associate Grievance Consultant, who

was to wait outside in case Rasty needed legal advice.

However, Rasty was informed the meeting had been

canceled and has not been rescheduled. Rasty alleges that

he remains on “probation” as a tenured professor, but he

admits in his deposition that no one told him he was on

any form of probation. Rather, Plaintiff Rasty subjectively

believes that it is implied that he is on probation. Defen-

dants deny that Rasty is on any form of probation.

In an apparent attempt to show disparate treatment,

Rasty alleges that in 1996 another Anglo-American profes-

sor had similar inaccuracies in his tenure-review materi-

als. According to Rasty’s allegations, Defendant Burton

discounted the information by that professor as honest

mistakes, and allegedly no action was taken against the

professor. However, when that professor was confronted

with accusation of misconduct, he immediately admitted

that there was a mistake and changed it. It is not clear if

that professor came forward to Defendant Burton on his

App. 27

own or whether he was confronted on the issue by Defen-

dant Burton. The Anglo-American professor was denied

tenure that year because of the mistakes. The record

reveals Plaintiff Rasty did not immediately admit to a

mistake after confrontation. Rather, he tried to explain

away the situation and the mistakes regarding the publi-

cations. Plaintiff Rasty has failed to produce evidence that

would show that the Anglo professor and Rasty were in

nearly identical circumstances at the time of their respec-

tive incidents.

Additionally related to the incident, Rasty admits to

bringing allegations of academic misconduct against other

professors when a determination was being made regard-

ing the tenure of that person. Rasty concluded that such

issues were proper and needed to be addressed in the

context of publication records of the person being evalu-

ated for tenure. Rasty thus admits that such investigative

allegations are both reasonable and legitimate in such

contexts. In fact, the record shows that Plaintiff Rasty’s co-

plaintiff in this case, Plaintiff Cardenas-Garcia, submitted

two of Rasty’s papers to Defendant Burton for Burton’s

judgmental review of whether there was misconduct or

not. Apparently, Plaintiff Cardenas-Garcia in that instance

reasonably believed a legitimate issue might exist in

regard to Rasty’s possible misconduct.

In another incident occurring in December of 1999,

Rasty alleges that Marcy accused him of being dangerous

while conducting a research project. The project dealt with

high-energy munitions utilizing explosive-driven compo-

nents for the U.S. Army and Air Force. Plaintiff Rasty

alleges that Defendant Marcy requested that the Univer-

sity Provost, University President, and Senior Associate

Dean of Engineering stop Rasty from participating in the

App. 28

project. Allegedly, the request was made while Rasty was

already being investigated by a committee for allegations

of “misconduct in research.” However, no action was ever

taken against Plaintiff Rasty in response to Defendant

Marcy’s recommendation for an investigation.

Plaintiff Rasty alleges that in February of 2002,

Defendant Burton, along with another professor, at-

tempted to add prejudicial material to Rasty’s post tenure-

review materials for evaluation in an effort to find Rasty

ineligible to continue his tenure status. The faculty re-

views professor to determine whether that professor

should maintain tenure by achieving milestones. The

reviewed faculty member is generally not in attendance at

the meeting. The record shows that e-mails were ex-

changed between the tenured faculty members, including

Defendant Burton, as to what should or should not be

included in the tenure-review materials. Plaintiff Rasty

was also a recipient of the e-mails. Defendant Burton and

another faculty member wanted to include some of the

misconduct issues within Plaintiff Rasty’s tenure-review

materials. The reason proffered for attaching such infor-

mation was that Plaintiff Rasty had attached the findings

of the UTAC to the materials. Defendant Burton and the

other faculty member felt that in all fairness the entire

record of the investigation should be attached, including

the initial investigative committee’s findings, etc. Rasty

felt that only the UTAC findings were important. Even

though the UTAC report contained the entire record, the

copy Rasty attached basically contained only the final

finding. Furthermore, Defendants allege that the final

finding actually referenced materials from the investiga-

tion that Plaintiff Rasty had not attached. Rasty believed

that all “the other stuff” could be interpreted unfavorably

App. 29

against him. It was determined that nothing should be

added to Rasty’s tenure-review materials; thus, the full

record of the research misconduct issues was not included

in Rasty’s review materials.

On March 20, 2002, Defendant Burton informed Rasty

that Rasty could no longer serve as faculty advisor for a

student chapter of a mechanical engineering society. Rasty

had served as the advisor for thirteen years. Rasty was

replaced by an Anglo-American professor. Rasty alleges

that his ability to obtain good performance reviews and

salary increases was affected by the loss of the advisory

position. The advisory position itself does not provide a

salary increase, but Rasty claims he used the position as

one of the components for his “service.” As stated above,

“service” is one of the components used in the annual

performance evaluations. By losing the position, Rasty

believes it has affected his annual evaluations and thus

the amount of his salary increases. Rasty also alleges that

he lost valuable networking opportunities because of the

loss of the position. Plaintiff Rasty admits in his deposition

that the constitution of the engineering society leaves the

decision up to the students to select the faculty advisor.

Rasty claims he was “never told by the students” that they

chese a new advisor. Rather, Rasty believes that “as far as

fhe} know[s],” Defendant Burton made the decision.

However, he further states in his deposition that “I have

no idea” that the students didn’t make the decision. Rasty

further claims that if the students had complained to

Defendant Burton regarding Rasty as an advisor, Burton

should have approached Rasty before the students re-

moved him from the position. Rasty never filed a grievance

for having been removed as advisor to the engineering

App. 30

society; Rasty has presented no evidence that Burton was

responsible in any way for the change; and Rasty has

presented no evidence to show that he was in any way

entitled to the position.

With the exception of the last two years, Rasty has

received a merit increase every year he has been at Texas

Tech. Defendants allege that no pay increases have been

available for the department during the last two years due

to state budget constraints. Rasty believes that the sub-

stantial amount of time he has spent in the last five years

dealing with grievances and lawsuits has affected his

merit increases because he could otherwise have been

excelling in his work. Rasty alleges that the salary in-

creases he received were below those of other professors of

the same or lesser rank in the MED from 1997 to 2000. In

2001, Rasty alleges, he was the lowest paid associate

professor in the department. Defendant Burton has stated

that Plaintiff Rasty has not been paid the same increases

as other professors because his performance reviews do

not merit such raises. Evidence exists in the record that

students submitted unfavorable reviews of Plaintiff

Rasty’s teaching methods and abilities. Rasty, in his

deposition, seems to imply that the students’ beliefs and

reviews should not be accorded much weight. Rasty also

alleges that he is being penalized by Defendant Burton

because Burton refuses to remove items from his perform-

ance reviews, such as the travel reimbursement incident

and accusations. Apparently, Plaintiff Rasty is still em-

ployed at Texas Tech University.

App. 31

Il.

PROCEDURAL BACKGROUND

On May 15, 2003, Plaintiffs sought leave of this Court

to amend their complaint and add Defendants Burton and

Marcy as named defendants. The Court granted the

request and Plaintiffs’ First Amended Complaint was filed

June 6, 2003. Defsndants’ First Amended Answer and

Affirmative Defenses was filed June 18, 2003. Defendant

Texas Tech’s Partial Motion to Dismiss was granted by

order of this Court on August 6, 2003, dismissing Plain-

tiffs’ claims for monetary damages against Defendant

Texas Tech based on §§ 1981 and 1983 as being barred by

the Eleventh Amendment. Defendants Burton and Marcy

filed their Motion for Summary Judgment on October 17,

2003. Plaintiffs filed their Response on November 6, 2003.

Defendants Burton and Marcy filed their Reply on No-

vember 21, 2003.

Til.

STANDARD

Summary judgment is appropriate only if “the plead-

ings, depositions, answers to interrogatories, and admis-

sions on file, together with the affidavits, if any,” when

viewed in the light most favorable to the non-moving

party, “show that there is no genuine issue as to any

material fact and that the moving party is entitled to

judgment as a matter of law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986) (internal quotations omit-

ted). A dispute about a material fact is “genuine” if the

evidence is such that a reasonable jury could return a

verdict for the non-moving party. Id. at 248. In making its

App. 32

determination, the court must draw all justifiable infer-

ences in favor of the non-moving party. Id. at 255.

Once the moving party has initially shown “that there

is an absence of evidence to support the nonmoving party’s

case,” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986),

the non-movant must come forward, after adequate time

for discovery, with significant probative evidence showing

a triable issue of fact. FED. R. Civ. F. 56(e); State Farm Life

Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990).

Conclusory allegations and denials, speculation, improb-

able inferences, unsubstantiated assertions, and legalistic

argumentation are not adequate substitutes for specific

facts showing that there is a genuine issue for trial.

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428

(5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097

(5th Cir. 1993). Affidavits, or portions thereof, that are not

based on personal knowledge or that are based merely on

information and belief cannot be considered in deciding a

motion for summary judgment. Richardson v. Oldham, 12

F.3d 1373, 1378-79 (5th Cir. 1994). To defeat a properly

supported motion for summary judgment, the non-movant

must present more than a mere scintilla of evidence. See

Anderson, 477 U.S. at 251. Rather, the non-movant must

present sufficient evidence upon which a jury could rea-

sonably find in the non-movant’s favor. Id. The court will

not, “in the absence of any proof, assume that the non-

moving party could or would prove the necessary facts.”

McCallum Highlands v. Washington Capital Dus, Inc., 66

F.3d 89, 92 (5th Cir. 1995), as modified, 70 F.3d 26 (5th

Cir. 1995).

Finally, in reviewing the summary judgment evidence,

“Rule 56 does not impose v- _- this Court a duty to sift

through the record in search of evidence to support a

App. 33

party’s opposition to summary judgment.” Ragas v. Tenn.

Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Nor

does a court have a duty to search the record for triable

issues. Id. Rather, the Court need rely only on those

portions of the submitted documents to which the nonmov-

ing party directs the Court’s attention. Id. The party

opposing summary judgment is required to articulate the

precise manner in which the evidence supports his or her

claim. Id. Moreover, Local Rule 56.5(c) expressly requires

that a party filing an appendix “must include in its brief

citations to each page of the appendix that supports each

assertion that the party makes concerning the summary

judgment evidence.” A party may not rely upon “unsub-

stantiated assertions” as competent summary judgment

evidence. Id. at 458.

In cases where the defense of qualified immunity is

raised, the defendant is not required to put forth evidence

to meet its summary judgment burden for a claim of

immunity. Beck v. Tex. State Bd. of Dental Exam'rs, 204

F.3d 629, 633 (5th Cir. 2000). “It is sufficient that the

movant in good faith pleads that it is entitled to absolute

or qualified immunity.” Id. The burden is on the plaintiff

to overcome a defendant’s defense of qualified immunity.

Burns-Toole v. Byrne, 11 F.3d 1270, 1274 (5th Cir. 1994).

The plaintiff must plead facts with sufficient particularity

so that the facts, if proved, would warrant the relief

sought. Jd. Heightened pleadings in qualified immunity

cases requires that the plaintiffs rest their complaint on

more than mere conclusions alone and plead their case

with precision and factual specificity. Reyes v. Sazan, 168

F.3d 158, 161 (5th Cir. 1999). A plaintiff’s complaint must

allege “with particularity all material facts on which [the

claimant] contends he will establish his right to recovery,

App. 34

which will include detailed facts supporting the contention

that the plea of iramunity cannot be sustained.” Morrison

v. City of Baton Rouge, 761 F.2d at 244, 245 (5th Cir.

1985).

IV.

DISCUSSION

Qualified Immunity

Officials sued in their individual capacity may assert

a defense of qualified immunity. See Petta v. Rivera, 143

F.3d 895, 898 (5th Cir. 1998). The doctrine of qualified

immunity serves to shield a government official as “an

immunity from suit rather than a mere defense to liabil-

ity[.]” Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 2156

(2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526

(1985)). Because qualified immunity is an immunity from

suit, the affirmative defense should be resolved at the

earliest possible stage of litigation, Saucier, 121 S. Ct. at

2156, and should protect “all but the plainly incompetent

or those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335, 344-345 (1986).

In analyzing whether an individual defendant is

entitled to qualified immunity, the Court must ask a

threshold question: “Taken in the light most favorable to

the party asserting the injury, do the facts alleged show

the [defendant]’s conduct violated a constitutional [or

statutory] right?” Saucier, 121 S. Ct. at 2156. The Fifth

Circuit does “not require that an official demonstrate that

he did not violate clearly established federal rights;

[precedence] places that burden upon plaintiffs.” Thomp-

son v. Upshur, 245 F.3d 447, 456 (5th Cir. 2001). “(If a

violation could be made out on a favorable view of the

App. 35

parties’ submissions, the next, sequential step is to ask

whether the right was clearly established.” Jd. (alterations

added). In other words, the Court should examine whether

it would be clear to a reasonable defendant that his

conduct is unlawful in the situation he confronted. Wilson

v. Layne, 526 U.S. 603, 615 (1999).

To the extent that the plaintiff is able to show that a

violation of a clearly established right occurred: the Court

must then make an additional inquiry and «determine

whether the defendant official’s alleged comduct was

objectively reasonable in light of the right allegedly vio-

lated. See Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir.

2001). However, if the plaintiff is unable to show a viola-

tion or that such a right was clearly established at the

time, the inquiry ceases and there is no need to address

the next step of the analysis of objective re sonableness.

Nunez v. Simms, 341 F.3d 385, 392 (5th Cir. 2003). “The

defendant’s acts are held to be objectively reasonable

unless all reasonable officials in the defendant’s circum-

stances would have then known” that the defendant's

conduct violated the plaintiff’s asserted constitutional

rights or a federal statute. Thompson, 245 F.3d at 457

(emphasis in original). The “defendant's circumstances”

include facts known to the defendant at the time, id., and

the particulars of the challenged conduct. Pierce v. Smith,

117 F.3d 866, 872 (5th Cir. 1997). However, a particular

defendant’s subjective state of mind has no bearing on

whether he is entitled to qualified immunity. Id. at 871

n.5. If defendants “of reasonable competence could dis-

agree on thle] issue, immunity should be recognized.”

Malley v. Briggs, 475 U.S. 335, 341 (1986). This second

step of objective reasonableness applies the law that was

clearly established at the time of the alleged violation.

App. 36

Thompson, 245 F.3d at 457. Determination of objective

reasonableness is a question of law for the courts to

decide. See Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir.

1999).

Title VII

The Fifth Circuit has refused to impose liability on

individual public employees for Title VII violations. See

Grant v. Lone Star Co., 21 F.3d 649, 651-52 (5th Cir. 1994);

Felton v. Polles, 315 F.3d 470, 478 (5th Cir. 2002). “Only

‘employers,’ not individuals acting in their individual

capacity who do not otherwise meet the definition of

‘employers, can be liable under title VII.” Grant, 21 F.3d at

652. Supervisory personnel are not considered “employ-

ers.” See id. Because the parties at times seem to blur the

alleged claims in their filings, the Court feels compelled to

state: Defendants Burton and Marcy are not employers,

but merely supervisors at the most; thus, Title VII does

not as a matter of law impose liability upon them in their

individual capacities. Plaintiffs must pursue claims

against the Individual Defendants under §§ 1981 and

1983.

42 U.S.C.A.1981

Section 1981, which was enacted to strengthen the

scope of federal civil rights protection and to deter and

protect against unlawful discrimination in employment

settings, provides as follows:

(a) Statement of equal rights

All persons within the jurisdiction of the

United States shall have the same right in

pce ae hny ow aren RRR RO ATS LR EID i SEK IS ROS 2

App. 37

every State and Territory to make and en-

force contracts, to sue, be parties, give evi-

dence, and to the full and equal benefit of

all laws and proceedings for the security of

persons and property as is enjoyed by white

citizens, and shall be subject to like pun-

ishment, pains, penalties, taxes, licenses,

and exactions of every kind, and to no other.

* KX

The rights protected by this section are pro-

tected against impairment by nongovern-

mental discrimination and impairment

under color of State law.

42 U.S.C. § 1981 (1994). Unlike § 1983, § 1981 is itself a

source of substantive rights. See Felton, 315 F.3d at 479.

“Plaintiffs must assert a cause of action against individual

fellow employees under § 1983 to remedy violations of civil

rights under § 1981.” Jd. at 482. Section 1981 liability will

lie against an individual defendant if the individual

defendant is essentially the same as the State for the

purposes of the complained of conduct. Foley v. Univ. of

Houston Sys., __ F.3d __, slip op. at *3 (5th Cir. Dec. 18,

2003).

The elements of claims alleging violations of § 1981

and Title VII are identical. Flanagan v. Aaron E. Henry

Cmty. Health Servs. Ctr., 876 F.2d 1231, 1233 (5th Cir.

1989). Thus, employment discrimination claims brought

under § 1981 are analyzed under the same evidentiary

App. 38

framework as Title VII claims.’ Walker v. Thompson, 214

F.3d 615, 625 (5th Cir. 2000).

42 U.S.C. § 1983

Plaintiff also sued Individual Defendants under

§ 1983 seeking redress for Defendants’ alleged national

origin discrimination, harassment, retaliation, and due

process violations. Section 1983 provides:

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage ... sub-

jects, or causes to be subjected, any citizen of the

United States ... to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress.

42 U.S.C. § 1983 (1994). Section 1983 is not itself a source

of substantive rights but merely provides “a method of

vindicating federal rights conferred elsewhere.” Albright v.

Oliver, 510 U.S. 266, 271 (1984) (internal quotations

omitted).

* The Fifth Circuit has been somewhat unclear on whether a

plaintiff may bring § 1981 claims based on national origin. This circuit

has clearly held that § 1981 claims based on race or alienage are

proper. Chaiffetez v. Robertson Research Holding Ltd., 798 F.2d 731

(5th Cir. 1986). Courts in this circuit also seem to have determined that

when a plaintiffs complaint can be interpreted as not only alleging

national origin claims but also as including allegations that implicate

the plaintiffs race or distinct ethnic class, then § 1981 is a proper

avenue for the allegations. See Jatoi v. Hurst-Euless-Bedford Hosp.

Auth., 807 F.2d 1214 (5th Cir. 1987).

vow

App. 39

To establish a claim under § 1983, a plaintiff must

prove that a person acting under the color of state law

deprived the plaintiff of a right secured by the Constitu-

tion or the laws of the United States. Martin v. Thomas,

973 F.2d 449, 452-53 (5th Cir. 1992); Augustine v. Doe, 740

F.2d 322, 324-25 (5th Cir. 1984). A plaintiff must further

prove that the alleged deprivation was not the result of

mere ni tligence. Farmer v. Brennan, 511 U.S. 825, 835

(1994).

In assessing an individual supervisor’s liability under

§ 1983, this circuit applies a standard which finds a

supervisor liable “only if (1) his conduct directly causes a

constitutional violation or (2) the plaintiff can show the

supervisor was deliberately indifferent to a violation of a

constitutional right.” Breaux v. City of Garland, 205 F.3d

150, 161 (5th Cir. 2000).

Prima Facie Case and Burden Shifting

A plaintiff may establish a violation by using either

direct evidence of discrimination, statistical proof, or

circumstantial evidence. Urbano, v. Continental Airlines,

Inc., 138 F.3d 204, 206 (5th Cir. 1998). Absent direct

evidence of discrimination based on race, gender, or age, a

plaintiff may establish unlawful discrimination under the

basic framework articulated by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The Court finds that Plaintiffs have not produced evidence

that could reasonably be construed as direct evidence of

discrimination. Thus, the burden-shifting framework of

McDonnell Douglas will be used to evaluate whether

Plaintiffs have met their burden.

App. 40

A plaintiff satisfies the first phase by meeting the

elements required to establish a prima facie case for the

cause of action pleaded. See Smith v. Wal-Mart Stores (No.

471), 891 F.2d 1177, 1178 (5th Cir. 1990) (citing Texas Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). A

defendant must satisfy the second phase by offering a

legitimate, nondiscriminatory reason for any ultimate

adverse employment action taken against a plaintiff.

Defendant’s “burden is one of production, not persuasion;

it ‘can involve no credibility assessment.’” Reeves v.

Sanderson, 530 U.S. 133, 142 ( 2000).

Once the defendant satisfies this burden of produc-

tion, the question is “whether there exist material facts

upon which a jury could conclude that Defendant’s stated

reason ... is pretextual.” Montgomery v. Brookshire, 880

F. Supp. 483, 486 (W.D. Tex. 1995). The plaintiff has the

burden and must adduce specific evidence that would

permit a reasonable trier of fact to find that the proffered

reason for the adverse employment action is a pretext. See

id.; see also Smith, 891 F.2d at 1178; EEOC v. J. M. Huber

Corp., 927 F.2d 1322, 1326 (5th Cir. 1991).

Prima Facie Case

(A) National Origin Discrimination/Disparate

Treatment’

To establish a prima facie case of national origin

discrimination, a plaintiff must establish that he was (1) a

member of a protected group; (2) qualified for the position

* Plaintiffs allege discrimination based on national origin. The

Court will analyze this cause of action as a disparate treatment claim

based on national origin.

App. 41

held; (3) suffered an adverse employment action; and (4)

treated less favorably than employees not in the protected

class or replaced by someone not in the protected class.

Rios v. Rossotti, 252 F3d 375, 378 (5th Cir. 2001); see

LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 3 (5th

Cir. 1996) (explaining that “t]he elements of a plaintiff’s

prima facie case necessarily vary according to the facts of

the case and the nature of the claim”); see also Byers, 209

F.3d at 426; Bauer v. Albemarle Corp., 169 F.3d 962, 966

(5th Cir. 1999).

In establishing the third element, the Fifth Circuit

has analyzed an “adverse employment action” more

strictly than other circuits and requires that only an

“ultimate employment decision” can form the basis for

liability. Burger v. Central Apartment Mgmt, Inc., 168 F.3d

875, 878 (5th Cir. 1999) (citing Mattern v. Eastman Kodak

Co., 104 F.3d 702, 707 (5th Cir. 1997)).

Ulti Adverse Empl Decisions’

“Ultimate employment decisions’ include acts ‘such as

hiring, granting leave, discharging, promoting, and com-

pensating.’” Id. Importantly, an employer’s action does not

rise to the level of an “adverse employment action” when it

fails to have more than a tangential effect on a possible

future ultimate employment decision. Id. An employee in

jeopardy of being discharged at some point in the future

“obviously does not equal being discharged,” and such

action thus is not an ultimate employment decision.

Mattern, 104 F.3d at 708. Some employment actions have

‘ The ultimate adverse employment action is also relevant to the

retaliation cause of action discussed below.

App. 42

been found not to constitute “adverse employment actions”

for purposes of establishing a prima facie case because

such decisions are not “ultimate employment decisions.”

Ackel v. Nat'l Communications, Inc., 339 F.3d 376, 385 (5th

Cir. 2003). Activities which are not ultimate employment

decisions include: ostracism by coworkers, loss of some job

duties, formal discipline, rude treatment by employer,

verbal reprimands, threats of potential dismissal, criticism

of work or conduct, refusal to consider employee’s input in

business decision, and low evaluations that could lead to

missed pay increases. See Hernandez v. Crawford Bldg.

Material Co., 321 F.3d 528, 532 n. 2 (5th Cir. 2003); see

Kang v. Bd. of Supervisors of Louisiana State Univ., 75

Fed. Appx. 974, 2003 WL 22272920 (5th Cir. Oct. 3, 2003)

(not designated for publication in the Federal Reporter)’.

Hostility from fellow employees and resulting anxiety do

not constitute adverse employment actions. Landgraf v.

USI Film Prods.. 968 F.2d 427, 431 (5th Cir. 1992). Spe-

cifically relating to the education context, the Fifth Circuit

has held that “decisions concerning teaching assignments,

pay increases, administrative matters, and departmental

procedures, while extremely important to the person ... ,

do not rise to the level of a constitutional deprivation.”

Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997).

Nothing more than a dispute over the quantum of pay

increases is not an actionable adverse employment activity,

* In Kang, the Fifth Circuit determined that the complained-of

conduct did not constitute an adverse employment action. The plaintiff

alleged that (1) he had received a poor performance evaluation from the

department head; (2) he had been “written up”; (3) he had received a less-

than-average pay raise, making him the lowest-paid professor in the

department; (4) he was not nominated for an award even though he had

been nominated in previous years; and (5) he was “unfairly and unjustiy”

criticized at a faculty meeting. Kang, 2003 WL 22272920 at *2.

App. 43

especially when nothing in the record upon which a

determination could be made shows that the defendant

was obligated to give the same dollar amount or same

percentage increase to each professor. Id. at 366.

(b) Retaliation

To establish retaliation, a plaintiff must show (1) that

he engaged in a protected activity; (2) that an adverse

employment action occurred; and (3) that a causal link

existed between the protected activity and the adverse

action. Golf v. Cont’l Oil Co., 678 F.2d 593, 597-99 (5th Cir.

1982). The burden-shifting framework of McDonnell

Douglas also applies to retaliation cases. Montemayor v.

City of San Antonio, 276 F.3d 687, 692 (5th Car. 2001).

To establish the first element, a plaintiff must show

that his activity was protected. The filing of an internal

discrimination complaint is a protected activity. Fierros v.

Texas Dep't of Health, 274 F.3d 187, 194 (Sth Cir. 2001). In

establishing the second element, the court is only to be

concerned with ultimate employment decisions. Walker uv.

Thompson, 214 F.3d 615, 629 (5th Cir. 2000). To establish

the second element of an adverse employment action, a

plaintiff must show that he suffered an adverse action.

To establish the third element of causation, a plaintiff

must show some evidence of a causal link between engag-

ing in a protected activity and the subject action of which

he claims. Ackel, 339 F.3d at 385. The question is not

whether an employer made an erroneous decision; it is

whether the decision was made with discriminatory

motive. Jd. at 1091.

App. 44

In retaliation cases, the defendant may offer a legiti-

mate reason why the adverse employment action occurred.

The Fifth Circuit has “consistently held that in retaliation

cases where the defendant has proffered a nondiscrimina-

tory purpose for the adverse employment action the

plaintiff has the burden of proving “but for” the discrimi-

natory purpose he would not have [had the action taken

against him].” Pineda v. United Parcel Serv., No. 03-50268

(5th Cir. Dec. 30, 2003); Long v. Eastfield College, 88 F.3d

300, 305 n. 4 (5th Cir. 1996) (no liability exists for unlaw-

ful retaliation if the action would have occurred anyway

even in the absence of the protected conduct).

A prima facie case of hostile work environment consist

of (1) the employee belongs to a protected group; (2) the

employee was subjected to unwelcome harassment; (3) the

harassment complained of was based on being a member

of the protected group; and (4) the harassment complained

of affected a term, condition, or privilege of employment.

Felton, 315 F.3d at 484 (where the harassment is allegedly

committed by a supervisor with immediate (or successively

higher) authority over the harassment victim, the em-

ployee need only satisfy the first four of the usual five

elements of harassment).

For harassment to affect a term, condition, or privi-

lege of employment, it must be sufficiently severe or

pervasive so as to alter the conditions of the victim’s

employment and create what a reasonable person would

find to be an abusive working environment. Felton, 315

F.3d at 485; Mota v. Univ. of Tex. Houston Health Sci. Ctr.,

261 F.3d 512, 523 (5th Cir.2001). Whether an environment

App. 45

is hostile or abusive depends on the totality of circum-

stances, focusing on factors such as “the frequency of the

conduct, the severity of the conduct, the degree to which

the conduct is physically threatening « .umiliating, and

the degree to which the conduct unreas iably interferes

with an employee’s work performance.” Id. at 523-24.

“Simple teasing, offhand comments, and isolated incidents

(unless extremely serious) will not amount to discrimina-

tory changes in ‘the terms and conditions of employ-

ment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 778

(1998). The “mere utterance of an ... epithet which

engenders offensive feelings in an employee” is insuffi-

cient, without more, to support liability. Meritor Savs.

Bank v. Vinson, 477 U.S. 57, 67 (1986).

Limitations - continuing violation

Defendants raise the defense of limitations in their

motion and brief Defendants state that most, if not all, of

the alleged incidents occurred more than two years prior

to the Individual Defendants being added to the suit. The

Court has determined the applicable limitations period for

Plaintiffs §§ 1981 and 1983 claims is two years. This

circuit has consistently applied the Texas limitations

period for personal injury torts to § 1981 cases. See Price v.

Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988);

Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). The Fifth

Circuit also applies the two-year limitations period to

§ 1983 suits tried in Texas. Id.

Thus, under the two-year limitations period, the Court

must determine if the alleged acts for which the Plaintiffs

advance their claims occurred within two years prior to

the Individual Defendants being sued. The Individual

App. 46

Defendants were added to this suit on May 15, 2003. Any

adverse employment actions under § 1981 that occurred

before May 15, 2001, would generally be time-barred.

The Plaintiffs assert that the alleged incidents were

part of a pattern and therefore a “continuing violation”

and not barred by limitations. In sum, the Plaintiffs allege

that a continuing violation applies because the various

adverse employment actions constituted an organized

scheme to discriminate rather than discrete occurrences

and their claims show a pattern or practice of discrimina-

tion. The continuing-violation theory has been para-

phrased by the Fifth Circuit as follows:

The continuing violation theory relieves a plain-

tiff of establishing that all of the complained-of

conduct occurred within the actionable period if

the plaintiff can show a series of related acts, one

or more of which falls within the limitations pe-

riod. The continuing violation doctrine is de-

signed to “accommodate plaintiffs who can show

that there has been a pattern or policy of dis-

crimination continuing from outside the limita-

tions period into the statutory limitations period,

so that all discriminatory acts committed as part

of this pattern or policy can be considered

timely.”

Celestine v. Petroleos De Venezuella SA, 266 F.3d 343, 351-

52 (5th Cir. 2001) (internal citations omitted). However,

discrete employment events should put the employee on

notice that a cause of action has accrued. Huckabay v.

Moore, 142 F.3d 233, 240 (5th Cir. 1998). Such discrete

actions, though racially motivated, “cannot be lumped

together with the day-to-day pattern of [] harassment”

App. 47

and therefore, if otherwise untimely, cannot be saved by

the continuing-violation doctrine. Celestine, 266 F.3d at

352 (quoting Huckabay, 142 F.3d at 240).

Hostile work environment claims are potentially more

compatible with the continuing-violation doctrine than are

discrete employment events. Id. The continuing-violation

doctrine does not automatically attach in a hostile work

environment case; the burden remains on the employee to

demonstrate an organized scheme led to and included the

present violation. Id. (emphasis added). The plaintiff must

also point to at least one violation within the limitations

period in order to render the complaint timely as to a

course of conduct. Huckabay, 142 F.3d at 240.

Additionally, where a pattern of harassment is spread

out over years, and it is evident long before the plaintiff

sues that the plaintiff was a victim of actionable harass-

ment, then the plaintiff cannot reach back and base the

suit on conduct that occurred outside of the limitations

period. Celestine, 266 F3d at 352 (quoting Hardin v. S.C.

Johnson & Son, Inc., 167 F.3d 340, 344 (7th Cir. 1999)).

Finally, plaintiffs are not allowed to “paint with wide

brush strokes, making broad generalizations about the

working conditions” over the last several years. Id. at 353.

A district court will not err in refusing to consider alleged

acts of harassment outside of the limitations period if the

plaintiff fails to carry the burden in invoking the continu-

ing-violation doctrine. Id.

PLAINTIFF CARDENAS-GARCIA

Plaintiff Cardenas-Garcia complains of separate and

varied acts and decisions that occurred at different times

and discretely applied in different ways to him than to

App. 48

Plaintiff Rasty. As to Plaintiff Cardenas-Garcia’s allega-

tions regarding discrete actions or conduct, those claims

are time-barred if they do not fall within the limitations

period. In relation to his harassment claims, Plaintiff

Cardenas-Garcia had at prior times complained internally

regarding allegedly harassing comments and conduct

based on national origin. Thus, it is apparent that he

believed the comments and conduct were discriminatory

harassment long before he filed this suit. It logically

“follows that it would not have been unreasonable” for him

to seek redress before the limitations period ran out. See

Hardin, 167 F.3d at 344. Therefore, Plaintiff Cardenas-

Garcia may not reach back and rely on evidence occurring

prior to the limitations period to make a charge concerning

an act that was not independently discriminatory. Nat7

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).

Furthermore, the Court finds that Plaintiff Cardenas-

Garcia has failed to allege at least one violation within the

limitations period as is required to invoke the continuing-

violation doctrine. Liberally construed, the only alleged

incidents that may have occurred within the limitations

period are (1) the allegation regarding due process viola-

tion related to the grievance Cardenas-Garcia filed against

Defendant Burton, (2) the allegation of constructive

discharge which would have occurred in 2002 when

Cardenas-Garcia resigned and left for the new position in

Maryland, and (3) allegations of discriminatory pay

increases.

As to the first incident, Plaintiff Cardenas-Garcia

alleges that the request to drop the discrimination charge

was a violation of his rights. He appears to further allege

that the delay and failure to resolve the issue forms the

basis for an “ongoing act of discriminatory and retaliatory

App. 49

conduct, as well as deprivation of due process” within the

limitations period. See Pl. Br. at 20. However, the law

states otherwise. After-the-fact remarks following the

filing of a grievance or claim do not evince discriminatory

motive or action. See Williams v. Cigna Financial Advisors

Inc., 197 F.3d 752, 763 n.4 (5th Cir. 1999) (stating ADEA

anti-retaliation provisions are not violated by employer’s

reasonable defensive measures, requests to drop charges,

or settlement proposals). Rather, such comments “may be

read as an expression of the candid opinion” of Defendant

Burton that Plaintiff Cardenas-Garcia was “pursuling] a

groundless discrimination claim.” See id. Plaintiff

Cardenas-Garcia also claims that Defendant Burton was

not originally open to mediating the claim. An employer is

not legally required to attempt to settle an employee's

claim, and any action or inaction in regard to settlement of

a claim cannot be retaliation for making the claim. See

45A Am. Jur. 2d Job Discrimination § 220 (2003). More-

over, under the circumstances that existed at the time

(Cardenas-Garcia’s being out of the state and accepting a

job in Maryland), Defendants’ actions in not pursuing the

grievance claim cannot be said to have been discrimina-

tory. Other than Defendant Burton’s request to drop the

discrimination portion of the grievance and Defendant

Marcy’s offer to pay for the mediation out of departmental

funds, Plaintiff Cardenas-Garcia has not shown how the

Individual Defendants are involved in the grievance

committee’s failure to pursue the matter. The conduct

complained of actually involving the Individual Defen-

dants does not amount to a deprivation of due process or

discrimination.

As to the second allegation by Cardenas-Garcia that

might fall within the limitations period, that he was

App. 50

constructively discharged, the Court finds that he has

failed to produce evidence which would create a genuine

issue of material fact for which a jury could find in his

favor. Cardenas-Garcia did not plead constructive dis-

charge specifically under §§ 1981 or 1983 but instead

pleaded constructive discharge under a Title VII cause of

action. As stated above, no claims under Title VII can be

brought against the Individual Defendants. However,

regardless of how the claim is brought, Cardenas-Garcia

has not established constructive discharge. In order to

establish constructive discharge, a plaintiff must establish

that “working conditions were so intolerable that a rea-

sonable employee would feel compelled to resign.” Brown

v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001).

“Constructive discharge requires a greater degree of

harassment than that required by a hostile environment

claim.” Jd. “Discrimination alone, without aggravating

factors, is insufficient for a claim of constructive dis-

charge.” Jd. Here, Plaintiff Cardenas-Garcia has offered no

evidence of intolerable working conditions or any degree of

harassment sufficient to support his claim of constructive

discharge or even the less-stringent claim of hostile

environment. There is no evidence to support a finding

that a reasonable person in Cardenas-Garcia’s position

would have felt compelled to resign. After all, Plaintiff

Rasty, who alleges the same types of harassment and

discrimination (and arguably alleges more incidents of

harassment and discrimination), is still working for Texas

Tech University. Cardenas-Garcia has offered no evidence

of conduct by the Defendants which was so severe and

pervasive as to alter the conditions of his employment or

interfere with his work performance such as would rea-

sonably cause him to resign. Accordingly, this Court finds

App. 51

that Plaintiff Cardenas-Garcia has failed to establish his

prima facie burden for a claim of constructive discharge.

Plaintiff Cardenas-Garcia also alleges that his pay

increases were discriminatory based upon his national

origin. However, any allegedly discriminatory pay in-

creases occurring before May 15, 2001, were discrete acts

which are barred by limitations. The record reveals that

because of state budget constraints, no merit increases

were given in the last few years. Thus, it appears that

Plaintiff Cardenas-Garcia has no actionable claim as to

salary pay increases. Moreover, the Court finds that

Defendants’ reasons proffered for the amounts of

Cardenas-Garcia’s pay increases were legitimate, nondis-

criminatory, and without pretext.

The Court further finds that because Plaintiff

Cardenas-Garcia has not alleged at least one act within

the limitations period that would allow his §§ 1981 and

1983 claims to proceed against the Individual Defendants,

Plaintiff has failed to meet his burden of proving a con-

tinuing violation. Moreover, the Court finds that there is

no support in the record for Plaintiff Cardenas-Garcia’s

speculation of an organized scheme of national origin

discrimination, retaliation, or harassment against him.

Thus, Plaintiff has failed to show a continuing violation.

Therefore, all claims for actions outside the two-year

limitations period for §§ 1981 and 1983 are barred by

limitations.

However, even if limitations were not an issue,

Cardenas-Garcia’s claims would still fail. After a careful

review of the record as to the Individual Defendants’

App. 52

conduct,® the Court finds that Cardenas-Garcia has not

made a prima facie case of national origin discrimination,

harassment, or retaliation. As a threshold matter,

Cardenas-Garcia must prove that he was “treated less

favorably than employees not” within his national origin

class, that he suffered “an adverse employment action” in

the form of retaliation, or that the Individual Defendants’

conduct “affected a term, condition, or privilege of em-

ployment,” and that the Individual Defendants’ proffered

reasons for their alleged conduct were not legitimate,

nondiscriminatory reasons.

Althougn found to be time-barred, for the sake of

thoroughness, the Court will briefly examine specific

alleged incidents that Plaintiff Cardenas-Garcia claims

show disparate treatment, retaliation, and harassment.

There is insufficient evidence in the record to rea-

sonably show that Cardenas-Garcia was subjected to

disparate treatment based on national origin. Cardenas-

Garcia has not shown that he was treated differently than

similarly situated employees not within his class.

Cardenas-Garcia specifically alleges that Defendant

Burton discriminated against him in Burton’s evaluations

of Cardenas-Garcia and that Burton gave another Anglo

faculty member who had also received poor student

evaluations a better annual evaluation. Besides mere

conclusions and speculations, Plaintiff Cardenas-Garcia

has not presented evidence that the other Anglo faculty

* In his filings with this Court, Cardenas-Garcia makes many

allegations of statements made or conduct that occurred over the years.

However, often the complained-of incidents involve third parties rather

than actions or comments made or approved of by the Individual

Defendants.

App. 53

member’s more favorable evaluations were improper,

considering the contributions made by the Anglo faculty

member which were cited by Defendant Burton in the

evaluation. To show disparate treatment, a plaintiff must

prove that the employer gave preferential treatment to

another employee under “nearly identical” circumstances.

Okoye v. Univ. of Texas Health Sci. Ctr., 245 F.3d 507, 514

(5th Cir. 2001). It cannot be said that both Plaintiff

Cardenas-Garcia and the Anglo faculty member are in

nearly identical positions because of the stated reasons for

the favorable evaluation, which did not likewise exist for

Cardenas-Garcia. “Merely disagreeing with an employer’s

negative performance assessment is insufficient to show

pretext.” Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318,

325 (5th Cir. 2002) (citing Shackelford v. Deloitte &

Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999)). Moreover,

and highly pertinent to this case, “[ploor work perform-

ance is a legitimate, non-discriminatory reason” for Plain-

tiff Cardenas-Garcia’s negative performance assessments

and the lower pay raise amounts he received. Jd. Addi-

tionally, none of these actions complained of by Cardenas-

Garcia by themselves rise to the level of an ultimate

employment decision. Although Cardenas-Garcia alleges

that his decision to resign his TTU employment was

influenced by these events, the facts show that Cardenas-

Garcia failed to pursue his grievance while on sabbatical

to the University of Maryland, and the ultimate decision

to accept employment at the University of Maryland was

his own.

As discussed above, the facts do not support a showing

of constructive discharge. Nor do the facts support a prima

facie case for disparate treatment. With regard to Plain-

tiff’s claim of disparate treatment, it is apparent from the

App. 54

record that Plaintiff Cardenas-Garcia has not shown that

he was “treated less favorably than employees not in the

protected class” under nearly identical circumstances. Nor

has he shown that the actions of which he complains

resulted in an adverse employment action. Finally, he has

not shown that the reasons offered by Defendants for his

evaluation could reasonably be regarded as merely pre-

text.

Concerning his retaliation claim, Cardenas-Garcia has

not shown an adverse employment action, a requisite for

proving retaliation. As discussed above, he has not shown

constructive discharge. Cardenas-Garcia appears to claim

that he was given less-than-average pay raises, causing

him to be the lowest-paid full professor in his department.

In Fierros v. Texas Department of Health, the Fifth Circuit

explained that a denial of a pay increase can be an “ulti-

mate employment action.” Fierros, 274 F.3d at 193. How-

ever, it is undisputed that Ca

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