     Case: 17-60667      Document: 00514364976         Page: 1    Date Filed: 02/27/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                    No. 17-60667
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       February 27, 2018
                                                                           Lyle W. Cayce
TADESSE MENGISTU,                                                               Clerk


                                                 Plaintiff - Appellant
v.

MISSISSIPPI VALLEY STATE UNIVERSITY; DOCTOR JONGCHAI KIM,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 4:16-CV-65


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Tadesse Mengistu is an Ethiopian-born U.S. citizen and an associate
professor in the Department of Business Administration at Mississippi Valley
State University. In 2013, his department hired a candidate from South Korea
with substantial private sector experience as an assistant professor. Mengistu
later discovered that the newly hired assistant professor made more than he
did and sued. He alleged that the university and department chair Jongchai


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 17-60667
Kim (who happens to be Korean) discriminated against Mengistu by paying
the newly hired professor a higher salary despite his lower rank and lesser
qualifications. Following discovery, the district court granted summary
judgment. Because we conclude that Mengistu has failed to offer evidence of
discrimination and to rebut defendants’ nondiscriminatory rationales for the
pay gap, we AFFIRM.
                                        I.
      Mississippi Valley State University (“MVSU”) is a public university in
Itta Bena, Mississippi. It assigns its faculty one of four ranks: professor,
associate professor, assistant professor, or instructor. Professor is the highest
rank, and instructor is the lowest. Then-president of MVSU William B. Bynum
testified at a deposition that, although most universities assign pay by rank,
MVSU did not. Instead, MVSU determined salaries for each faculty member
at the time of hire based on the availability of appropriated funds and the new
faculty member’s qualifications.
      Tadesse Mengistu is U.S. citizen born in Ethiopia. Since 2006, he has
been an associate professor of economics in the Department of Business
Administration at MVSU. When Mengistu was hired, he accepted a salary of
$68,000, the amount budgeted for his position at the time of his hire. MVSU
raised his salary in 2007 to his current salary of $70,380. Mengistu renewed
his contract at that level of pay every year from 2007 to 2016.
      In 2013, after an economics professor retired, MVSU sought to hire an
assistant professor in the Department of Business Administration. A search
committee was formed, consisting of Mengistu and three other faculty
members. The committee reviewed and ranked six applications. Jongchai Kim,
the department chair, reviewed the committee’s recommendations. One of the
applications, Jeong Beom Lee, was ranked second by Mengistu and first by the
remaining faculty members, making him the highest scoring candidate.
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                                 No. 17-60667
Although he was hired only as an assistant professor, Lee was offered a salary
of $75,000—over $4,000 more than Mengistu, who was an associate professor.
Kim testified at his deposition that he lacked authority to make a salary
recommendation and that he instead accepted the recommendation of MVSU’s
vice president of academic affairs, Anna Hammonds.
      Mengistu contends that Lee was paid more because, like Kim, Lee is
Korean. According to Mengistu, the pay disparity is unjustified because
Mengistu is more qualified than Lee and holds the higher rank of associate
professor. Mengistu testified at his deposition that the job opening in the
Department of Business Administration was in economics. Because Lee’s Ph.D.
is in finance rather than economics, he was less qualified for that position in
Mengistu’s view. Mengistu also argues that Lee was less qualified because
most of his experience was in the private sector and he had only been an
adjunct professor, whereas Mengistu had years of experience as a professor.
Mengistu claims that Kim later retaliated against him for his opposition to Lee
by recommending that MVSU terminate him and deny his tenure application.
      Mengistu sued MVSU and Kim in federal district court, alleging
violations of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as
well as various state law torts. Following discovery, MVSU and Kim filed a
motion for summary judgment. The district court granted the motion. It held
that Mengistu had failed to show that he was similarly situated to Lee, who
was hired years later with different experience. The district court also
concluded that Mengistu had failed to rebut the defendants’ nondiscriminatory
explanations for the pay disparity—i.e., Lee’s experience and the availability
of funds. It likewise dismissed Mengistu’s hostile work environment claim
because he had failed to come forward with any specific facts indicating
pervasive abuse based on his race or national origin. Finally, the district court


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                                       No. 17-60667
dismissed Mengistu’s state law claims for failure to state a claim. Mengistu
appeals the dismissal of his § 1981 and Title VII claims.
                                             II.
       We review de novo the district court’s grant of summary judgment. Lee
v. Kan. City S. Ry. Co., 574 F.3d 253, 257 (5th Cir. 2009). A court must enter
summary judgment if “there is no genuine dispute as to any material fact.”
Fed. R. Civ. P. 56(a). In making that determination, we view the evidence in
the light most favorable to the non-movant. See Vela v. City of Houston, 276
F.3d 659, 666 (5th Cir. 2001). Even so, the non-movant must “come forward
with specific facts indicating a genuine issue for trial” and cannot merely rely
on allegations. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
                                            III.
       In order to make out a prima facie case of pay discrimination under
§ 1981 or Title VII, 1 a plaintiff must show (1) “that he was a member of a
protected class”; (2) “that he was paid less than a non-member”; and (3) “that
his circumstances are ‘nearly identical’ to those of” the better-paid non-
member. Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 522–23 (5th Cir.
2008). After the plaintiff establishes a prima facie case, the burden shifts to
the defendant to offer non-discriminatory reasons for the pay disparity. See id.
at 522. This is a burden of “‘production, not persuasion,’ and ‘involve[s] no
credibility assessment.’” Squyres v. Heico Cos., L.L.C., 782 F.3d 224, 231 (5th
Cir. 2015) (alteration in original) (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000)). If the employer meets its burden, then
the burden swings back to the plaintiff to show that the employer’s rationale



       1“The elements of the claims under Title VII and 42 U.S.C § 1981 are identical. We
therefore evaluate both claims using the same analysis.” Pratt v. City of Houston, 247 F.3d
601, 606 n.1 (5th Cir. 2001) (citation omitted) (citing Casarez v. Burlington N./Santa Fe Co.,
193 F.3d 334, 337 n. 3 (5th Cir. 1999)).
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is merely a pretext. See id. To do so, the plaintiff must put forward “substantial
evidence” to “rebut[] each of the nondiscriminatory reasons the employer
articulates.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001).
The plaintiff may do so by showing that a discriminatory motive is more likely
than a nondiscriminatory one, “or that [her employer’s] explanation is
unworthy of credence.” Id. (alteration in original) (quoting Deffenbaugh-
Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998)).
      Mengistu has failed to carry either burden. As an initial matter,
Mengistu has not established his prima facie case because he has failed to show
“that his circumstances are ‘nearly identical’ to those of a better-paid employee
who is not a member of his protected class.” Taylor, 554 F.3d at 523. There are
key differences between Lee and Mengistu that render Lee an inappropriate
comparison. Lee was hired seven years after Mengistu. When Lee was hired as
an assistant professor, he had substantial experience working in the private
sector in South Korea and a Ph.D. in finance. Mengistu, by contrast, had
worked in academia for 20 years by the time he was hired at MVSU and had a
Ph.D. in economics. The long lapse in time between their dates of hire and their
significantly different backgrounds mean that Lee and Mengistu are not
“nearly identical.” Cf. McElroy v. PHM Corp., 622 F. App’x 388, 392 (5th Cir.
2015) (noting that coworkers are not appropriate comparators where they “had
been hired at different times and had different positions”); Lee, 574 F.3d at 260
(noting that an employee is not appropriate comparator if the relevant
personnel decisions were “too remote in time from” each one).
      Even assuming Lee is an appropriate comparator, Mengistu has failed
to rebut defendants’ numerous nondiscriminatory explanations for the pay
disparity. Defendants explained that Lee had previously worked in the private
sector in South Korea and his salary needed to be set at a competitive level.
Kim testified that he lacked the authority to determine salaries and that
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MVSU’s vice president of academic affairs made the salary recommendation.
Mengistu has offered no evidence to rebut that testimony. Moreover, he has
failed to offer “substantial evidence,” see Wallace, 271 F.3d at 220, that
defendants’ explanation for the pay disparity is merely pretextual. Rather, he
has simply asserted without any other evidentiary support that Lee’s finance
degree and private-sector background were less valuable than Mengistu’s
economics degree and academic background. Mengistu’s opinion that his
experience was more valuable is not—without more—“substantial evidence” of
pretext. See, e.g., Britt v. Grocers Supply Co., 978 F.2d 1441, 1451 (5th Cir.
1992) (holding that “speculation and belief” are “insufficient to create a fact
issue as to pretext”); E.E.O.C. v. Exxon Shipping Co., 745 F.2d 967, 976 (5th
Cir. 1984) (“[P]retext cannot be established by mere ‘conclusory statements’ of
a plaintiff who feels he has been discriminated against.” (quoting Elliott v. Grp.
Med. & Surgical Serv., 714 F.2d 556, 566 (5th Cir. 1983))).
      In cases involving discriminatory promotion, this court has held that a
plaintiff can show pretext by demonstrating that he was “clearly better
qualified.” Price v. Fed. Express Corp., 283 F.3d 715, 723 (5th Cir. 2002).
Indeed, the plaintiff’s “qualifications must ‘leap from the record and cry out to
all who would listen that he was vastly—or even clearly—more qualified for
the subject job.’” Id. (quoting Odom v. Frank, 3 F.3d 839, 847 (5th Cir. 1993)).
Even a plaintiff’s “better education, work experience, and longer tenure with
the company do not establish that he is clearly better qualified.” Id. It is hardly
self-evident that Lee’s finance degree and private sector experience make him
less qualified than Mengistu’s economics degree and academic experience for a
position in the Department of Business Administration—let alone so clear that
it leaps from the record and cries out to us.
      Defendants have offered another nondiscriminatory rationale that
Mengistu has done nothing to rebut—if anything, he has only reinforced it
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                                  No. 17-60667
through his own summary judgment evidence. Defendants have explained that
a faculty member’s salary is determined by the date of hire and the funds then
available. Then-president Bynum testified at his deposition that MVSU did not
determine faculty compensation by rank. MVSU’s vice president of academic
affairs testified that a new hire will “[b]y default” receive a higher salary than
faculty members in the same department hired years earlier. Mengistu’s own
evidence at summary judgment underscored this point. He submitted a chart
created by MVSU in response to his EEOC charge. That chart showed that
Mengistu, an associate professor, actually made almost $2,000 more than a
professor hired 13 years before him. Although Mengistu received a one-time
salary increase as part of university-wide salary increase, there is no evidence
that he ever requested another one. Rather, the evidence at summary
judgment showed that he repeatedly signed annual contracts at a salary of
$70,380. Accordingly, Mengistu has failed to present any evidence whatsoever
that this rationale or any other is a pretext.
      Finally, Mengistu’s brief argues that Kim’s refusal to endorse Mengistu’s
request for tenure provides “[f]urther evidence of [] unlawful discrimination.”
Mengistu did not make any allegations related to the denial of tenure in his
complaint. His complaint only states that he was granted tenure in 2015.
Generously construing this as a claim for discriminatory denial of tenure, it
fails because he has provided no evidence of discrimination. Mengistu
essentially contends that Lee’s favorable treatment demonstrates that
Mengistu was initially “denied tenure in circumstances permitting an
inference of discrimination.” Krystek v. Univ. of S. Miss., 164 F.3d 251, 257 (5th
Cir. 1999). As we have already concluded, defendants’ treatment of Lee does
not support an inference that their treatment of Lee or Mengistu was
motivated by race, ethnicity, or national origin.


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     Consequently, Mengistu has altogether failed to produce any evidence of
discrimination. Summary judgment was properly granted.
                                   IV.
     For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of defendants Kim and MVSU.




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