Ross v. UT/San Antonio ( 1998 )

REVISED, May 8, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50526
JAMES A. ROSS,
Plaintiff-Appellant,
VERSUS
UNIVERSITY OF TEXAS AT SAN ANTONIO; BOARD OF REGENTS
OF THE UNIVERSITY OF TEXAS SYSTEM,
Defendants-Appellees.
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JAMES A. ROSS,
Plaintiff-Appellant,
VERSUS
RUSSEL BRINER; JAMES GAERTNER,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Texas
April 21, 1998
Before REAVLEY, DeMOSS, and PARKER, Circuit Judges.
DeMOSS, Circuit Judge:
James Ross appeals from the district court’s grant of summary
judgment in favor of the defendants in this age discrimination
suit.
BACKGROUND
James Ross has been an Associate Professor of Accounting and
Informational Systems in the Business School of the University of
Texas at San Antonio since 1975. Ross is 55 years of age. Ross
alleges that he is being paid less than similarly situated younger
workers because of his age. Ross filed two law suits in federal
court. In the first action, Ross sued the University and the Board
of Regents, alleging that he was denied certain pay increases and
that he was paid less for performing the same or similar work.
Ross’ claims in this action were brought pursuant to the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA).
In the second action, Ross sued his immediate supervisors, Division
Director Russel Briner and Dean James Gaertner. Ross’ action
against the individual supervisors alleged that ill-will and
discrimination by these state actors arbitrarily affected his
compensation, thereby depriving Ross of his right to substantive
due process.1
The University and the Board of Regents moved for summary
1
Ross also alleged (1) that the University’s compensation
practices have a disparate impact on older workers, and (2)
retaliation in violation of Title VII. Ross’ retaliation claim was
dismissed and Ross has not challenged the district court’s
dismissal in his brief on appeal. Similarly, Ross has not
articulated any cogent argument with respect to his disparate
impact claim. Those claims are therefore deemed abandoned and form
no part of the Court’s discussion. See FED. R. APP. P. 28(a)(5);
MacArthur v. University of Tex. Health Ctr., 45 F.3d 890, 896 (5th
Cir. 1995); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
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judgment on the ADEA claims. Thereafter, Ross moved to consolidate
the two cases. The district court granted Ross’ motion to
consolidate, then granted the ADEA defendants’ motion for summary
judgment, purporting to finally dispose of all claims in both
cases. Ross appealed.
On appeal, Ross claims that the district court’s grant of
summary judgment with respect to his ADEA claims is in error
because he submitted sufficient evidence to support a reasonable
inference of age discrimination. Ross also maintains that neither
the defendant’s motion for summary judgment nor the district
court’s order address his claim that younger employees were paid on
a higher scale.
Ross claims the district court’s grant of summary judgment is
in error with respect to the Due Process claims because defendants
Briner and Gaertner did not move for summary judgment. Thus, the
district court’s entry of summary judgment was done sua sponte, and
without reasonable notice to Ross. See FED. R. CIV. P. 56(c);
Millar v. Houghton, 115 F.3d 348, 350 (5th Cir. 1997).
DISCUSSION
I.
The McDonnell Douglas burden shifting paradigm applies to age
discrimination suits. Rhodes v. Guiberson Oil Tools, 75 F.3d 989,
992 (5th Cir. 1996).2 To survive summary judgment, the plaintiff
2
But see O’Connor v. Consolidated Coin Caterers Corp., 116
S. Ct. 1307, 1309-10 (1996) (leaving the question of the
applicability of the McDonnell Douglas paradigm in ADEA cases
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must initially demonstrate a prima facie case of age
discrimination. Id. A prima facie case generally requires proof
that the plaintiff is within the protected class, that he suffered
an adverse employment decision, and some evidence that the
employment decision was motivated by unlawful age discrimination.
E.g., Armendariz v. Pinkerton Tobacco, 58 F.3d 144, 149 (5th Cir.
1995); Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir.
1993).3 Once shown, a plaintiff’s prima facie case creates an
inference of age discrimination, which the employer is required to
rebut with a legitimate non-discriminatory reason for the
employment decision. Rhodes, 75 F.3d at 992-93. If the employer
successfully articulates a legitimate non-discriminatory reason,
the inference of discrimination vanishes, and plaintiff is left
with the ultimate burden of presenting evidence from which a
reasonable trier of fact could infer age discrimination. Id. at
993. To avoid summary judgment, an age discrimination plaintiff
must present evidence that both (1) rebuts the employer’s non-
open); Rhodes, 75 F.3d at 1003-06 (DeMoss, J., concurring in part
and dissenting in part) (suggesting that there are important
differences between the ADEA and Title VII that might support a
different analysis).
3
O’Connor instructs that there must be some “logical
connection between each element of the prima facie case and the
illegal discrimination for which it establishes a legally
mandatory, rebuttable presumption.” O’Connor, 116 S. Ct. at 1310
(internal quotations omitted). For that reason, the formulation of
the prima facie case necessarily varies depending upon the type of
decision challenged. Using that principle, Ross should have been
required to produce some evidence that he: (1) is within the
protected age group; (2) suffered an adverse employment action; and
that (3) the challenged employment decisions were motivated by
unlawful age discrimination.
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discriminatory reason, and (2) creates an inference that age was a
determinative factor in the challenged employment decision. Id. at
994.
The district court held that Ross failed to establish a prima
facie case, failed to rebut the employer’s legitimate non-
discriminatory reasons for the disparity in pay, and failed to
create an inference that any pay disparity was the result of
intentional age discrimination. We affirm, but for reasons that
are different from those articulated by the district court.
II.
Ross offers the following evidence of discrimination: (1) his
own affidavit, with attached charts, (2) the deposition testimony
of defendants Briner and Gaertner; and (3) the statement of an
expert statistician. Neither the deposition testimony of Briner
and Gaertner nor the expert’s statement support any inference of
age discrimination. Taken together, the deposition testimony of
Briner and Gaertner merely establish that an equity adjustment may
have been given to another professor who is only one year younger
than Ross. The University’s award of an equity increase to an
employee within the protected class and only one year younger than
Ross is insufficient in this case to create a reasonable inference
of age discrimination. The expert’s statement offers a conclusory
opinion on the ultimate issue of discrimination, stating that there
has been a “systematic effort, extending over a number of years,
artificially to depress Professor Ross’ salary in comparison to
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those of younger faculty hired more recently.” That statement is
expressly based upon incomplete information and does not contain
any statistical analysis that would be competent summary judgment
testimony from this expert. See FED. R. EVID. 703 (sources
underlying an expert’s opinion must be of the type relied upon by
experts in the field); First United Fin. Corp. v. United States
Fidelity & Guar. Co., 96 F.3d 135, 136 (5th Cir. 1996) (expert
opinion exceeding scope of expert’s expertise properly excluded).
Ross relies heavily, as he must, upon his own affidavit and
two appended charts. Chart 1 reflects the ages, salaries, and
evaluation ratings for each of the associate professors in Ross’
division. Chart 2 reflects the ages, salaries, and hire dates of
each of several assistant professors in undisclosed divisions. The
charts reflect that (1) Ross is paid less than seven assistant
professors hired since 1991; (2) Ross is older than all but two of
the nine associate professors and older than all of the assistant
professors; (3) Ross earns less than all of the associate or
assistant professors; and (4) the three oldest associate professors
in the division earn the lowest salaries.
The University responds that the two professors who are older
than Ross also make more money than he does. The University also
responds that, although Ross has correctly identified several
recently hired assistant professors making more than him, there is
no evidence demonstrating which department those professors were
hired into or what factors set their salaries.
Ross admits that the higher salaries earned by the recent
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hires are explained by the University’s practice of determining
entry-level pay according to discipline, market demand and degree.
Thus, Ross does not dispute that market forces, rather than age
discrimination, are the primary cause of any disparate compensation
between more recent hires and longstanding professors. We conclude
that the charts in this case are insufficient to create a
reasonable inference of age discrimination, because any disparities
they reflect are caused by market factors not related to the age of
the professors who make up the control group.
Ross maintains that the University conducted an equity study
to determine which longstanding professors were entitled to an
equity increase to make up for pay disparity caused by market
forces. Although that study identified Ross as a candidate for an
equity increase, none was awarded. Ross thus claims that the
University’s failure to give him an equity adjustment creates an
inference of age discrimination. But Ross admits that equity
adjustments were in fact awarded to four other associate
professors, all of whom were within the protected age group. The
University’s willingness to make equity increases to other
longstanding professors within the protected age group tends to
negate, rather than support, an inference of discrimination.
III.
The University maintains that Ross’ lower pay is explained by
poor performance appraisals and poor performance caused in large
part by his time and energy commitment to his second occupation as
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a practicing lawyer. The University offered evidence that Ross
spends forty to fifty hours per week in his law office, from which
he earned more than $100,000 in the year before this suit. The
University maintains that Ross is rarely available to students
except by phone, and that he is rarely on campus. In addition, the
University maintains that the caliber of his professional writings
is unacceptable.
Ross disputes the employer’s legitimate non-discriminatory
reason, but fails to offer competent rebuttal evidence. For
example, Ross claims that younger faculty keep comparable hours on
campus and still receive merit increases. Ross claims that younger
faculty members publish comparable research and still receive merit
increases. Ross fails, however, to refer the Court to any
particularized evidence to support his subjective view of the
facts. See Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th
Cir. 1996) (plaintiff’s generalized statements about relative
qualifications or the treatment of similarly situated employees is
insufficient to support an inference of discrimination).
Ross also argues that the performance appraisals themselves
are unreliable because they are the result of unlawful age animus.
Ross supports that assertion with the statement of the expert
witness and his own belief. Such evidence is ineffective to rebut
the employer’s fact-based judgment that Ross’ significant
commitment to his law practice created a divided loyalty which
compromised his effectiveness at the University. See Pinkerton
Tobacco, 58 F.3d at 152; Little v. Republic Reining Co., 924 F.2d
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93, 94 (5th Cir. 1991); see also Waggoner v. City of Garland, 987
F.2d 1160, 1165 (5th Cir. 1993) (“The ADEA was not intended to be
a vehicle for judicial second-guessing of business decisions, nor
was it intended to transform the courts into personnel managers”)
(internal quotations omitted). Thus, Ross failed to submit
competent summary judgment evidence sufficient to rebut his
employer’s non-discriminatory explanation for his lower pay.
In the final analysis, Ross’ evidence shows no more than that
he was the third oldest and lowest paid professor in his division,
a fact which is adequately explained by the employer’s legitimate
non-discriminatory reason. We conclude that Ross’ evidence is
insufficient to support an inference of age discrimination. For
that reason, summary judgment was appropriately granted with
respect to Ross’ claims of discrimination in violation of the ADEA.
IV.
With respect to Ross’ Due Process claims against his
individual supervisors, Ross claims that the district court
inappropriately entered summary judgment in favor of the defendants
sua sponte, and without providing Ross adequate notice that
judgment would be entered.
The district court is empowered to enter summary judgment sua
sponte, provided the parties are provided with reasonable notice
and an opportunity to present argument opposing the judgment. As
we stated in Millar v. Houghton, 115 F.3d 348 (5th Cir. 1997):
Under Fed. R. Civ. P. 56(c), a party must be
served with a motion for summary judgment at least
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10 days before a court grants the motion against
him. Similarly, a party must be given at least 10
days notice before a court grants summary judgment
sua sponte. This requirement places a party on
notice that he is in jeopardy of having his case
dismissed and affords him the opportunity to put
forth evidence to show precisely how he intends to
prove his case at trial.
115 F.3d at 350 (footnotes omitted). Despite the strictness of
this rule, our Court has recognized that the district court’s
failure to provide notice may be harmless error. Nowlin v.
Resolution Trust Corp., 33 F.3d 498, 504 (5th Cir. 1994). Nowlin
held that error arising from the district court’s sua sponte grant
of summary judgment may be harmless when the “nonmovant has no
additional evidence or if all of the nonmovant's additional
evidence is reviewed by the appellate court and none of the
evidence presents a genuine issue of material fact." Id.
In this case, Ross’ allegation that Briner’s and Gaertner’s
compensation practices deprived him of Due Process does not state
a cognizable constitutional claim. Dorsett v. Board of Trustees
for State Colleges & Univs., 940 F.2d 121, 123 (5th Cir. 1991)
(holding that complaints challenging “teaching assignments, pay
increases, administrative matters, and departmental procedures” do
not rise to the level of a constitutional deprivation). Similarly,
and by analogy to our Title VII precedent, Ross’ allegation that he
was less favorably reviewed does not involve an ultimate employment
decision that could rise to the level of a constitutional
deprivation. Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th
Cir.), cert. denied, 118 S. Ct. 336 (1997). There is, therefore,
no additional evidence that Ross could offer that would justify
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relief as to his claims that his supervisors violated his right to
Due Process of law. That being the case, the district court’s sua
sponte entry of summary judgment is harmless error.
CONCLUSION
For the foregoing reasons, the district court’s grant of
summary judgment in favor of defendants is AFFIRMED.
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