     Case: 14-60917      Document: 00513211874         Page: 1    Date Filed: 09/29/2015




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

                                                                                   FILED
                                    No. 14-60917                           September 29, 2015
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
DR. SHU-HUI WU,

              Plaintiff – Appellant

v.

MISSISSIPPI STATE UNIVERSITY,

              Defendant – Appellee



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             U.S.D.C. No. 1:13-CV-2


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Dr. Shu-Hui Wu appeals the district court’s grant of summary judgment
in favor of Mississippi State University (“MSU”) on Wu’s claim that MSU
retaliated against her by withholding a promotion and providing a minimal
raise. Wu also appeals the district court’s exclusion of the testimony of Wu’s
expert witness, Dr. Saranna Thornton.              For the reasons that follow, we
AFFIRM the district court in all respects.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-60917    Document: 00513211874     Page: 2     Date Filed: 09/29/2015


                                 No. 14-60917

                                I. Background
      Wu has been a history professor at MSU since 1999 and an associate
professor since 2004. Beginning in February 2011, Wu filed three complaints
with the EEOC alleging discrimination based on race, national origin, and age,
as well as retaliation claims. The first charge, filed in February 2011, alleged
that Wu was paid less than other professors. The second charge, filed in
August 2011, alleged that she had received a lower raise than other professors
in retaliation for her first charge. After the second charge, Wu applied for, but
did not receive, a promotion to full professor. She subsequently filed the third
charge in July 2012 alleging that MSU denied her promotion to full professor
in retaliation for the first two charges.    Wu received a promotion to full
professor in 2014.
      Wu sued MSU in December 2012 under Title VII, asserting claims for
discrimination and retaliation based on MSU’s failure to promote her to full
professor and to raise her salary commensurate with the raises received by
other professors. MSU moved for summary judgment. The district court
granted MSU’s motion as to Wu’s retaliation claims but denied it as to her
discrimination claims; the district court also granted MSU’s motion to exclude
a report from Wu’s expert witness, Dr. Thornton, an economics professor at
Hampden-Sydney College in Virginia.
      The parties proceeded to trial on the discrimination claim, which
resulted in a jury verdict for MSU. Wu timely appealed the district court’s
judgment, specifically challenging its grant of summary judgment on Wu’s
retaliation claim and the exclusion of the expert witness testimony.
                            II. Standard of Review
      We review the district court’s grant of summary judgment de novo. Mesa
v. Prejean, 543 F.3d 264, 269 (5th Cir. 2008).            Summary judgment is

                                       2
    Case: 14-60917     Document: 00513211874       Page: 3   Date Filed: 09/29/2015


                                  No. 14-60917

appropriate when “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A
disputed fact is material if it has the potential to affect the outcome of the suit
under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).     Doubts are resolved in favor of the nonmoving party, and any
reasonable inferences are drawn in favor of the nonmoving party. Evans v.
City of Bishop, 238 F.3d 586, 589 (5th Cir. 2000). We may affirm the district
court’s grant of summary judgment on any ground supported by the record and
presented to the district court. Hernandez v. Velasquez, 522 F.3d 556, 560 (5th
Cir. 2008).
      We review the decision to exclude an expert witness for abuse of
discretion. Brown v. Ill. Cent. R.R. Co., 705 F.3d 531, 535 (5th Cir. 2013). “A
trial court abuses its discretion when its ruling is based on an erroneous view
of the law or a clearly erroneous assessment of the evidence.” Knight v. Kirby
Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007) (citation omitted). If we
“find[] an abuse of discretion in admitting or excluding evidence, we review the
error under the harmless error doctrine, affirming the judgment, unless the
ruling affected substantial rights of the complaining party.”         Id. (citation
omitted).
                                 III. Discussion
      A. Summary Judgment on Wu’s Retaliation Claims
      To establish a prima facie case of retaliation, Wu must show that (1) she
participated in a Title VII protected activity, (2) she suffered an adverse
employment action by her employer, and (3) there is a causal connection
between the protected activity and the adverse action. Stewart v. Miss. Transp.
Comm’n, 586 F.3d 321, 331 (5th Cir. 2009). This causal connection requires
“but-for causation,” i.e., proof that the retaliation would not have occurred

                                        3
     Case: 14-60917       Document: 00513211874         Page: 4     Date Filed: 09/29/2015


                                       No. 14-60917

without the employer’s allegedly wrongful actions. Univ. of Tex. Sw. Med. Ctr.
v. Nassar, 133 S. Ct. 2517, 2533 (2013). If Wu makes this showing, the burden
shifts to the employer to articulate a legitimate, non-retaliatory reason for the
adverse employment action. See Long v. Eastfield Coll., 88 F.3d 300, 304–05
(5th Cir. 1996); see also McDonell Douglas Corp. v. Green, 411 U.S. 792, 802–
04 (1973).
              1. Denial of Promotion to Full Professor
       First, Wu claims that MSU retaliated against her by denying her
promotion to full professor. The parties do not dispute that Wu participated in
a protected activity when she filed her EEOC complaints or that the denial of
her promotion was an adverse employment action. Instead, the dispute focuses
on whether Wu has presented sufficient evidence to raise a genuine issue of
material fact regarding whether the denial of the promotion can be causally
linked to her EEOC complaints. See Stewart, 586 F.3d at 331.
       Wu does not contend that all of the numerous decisionmakers involved
in the promotion process “harbored . . . retaliatory animus” against her. See
Zamora v. City of Houston, ___ F.3d ___, No. 14-20125, 2015 WL 4939633, at
*3 (5th Cir. Aug. 19, 2015). Instead, she argues only that Dr. Alan Marcus, the
head of the history department since 2005, had a retaliatory motive.
Therefore, Wu asserts a “cat’s paw” theory of liability, meaning that she must
show Marcus “somehow influenced the decisionmaker[s] to take the retaliatory
action” or used the decisionmakers to retaliate. 1 Id. “[T]o establish causation
under a cat’s paw theory, [Wu] must produce sufficient evidence that (1) [her]


       1 Though there was some question regarding the “continued viability of cat’s paw
analysis” in light of the Supreme Court’s decision in Nassar, we recently held that “cat’s paw
analysis remains a viable theory of causation” for retaliation claims. Zamora, 2015 WL
4939633, at *3, *5.

                                              4
     Case: 14-60917      Document: 00513211874        Page: 5     Date Filed: 09/29/2015


                                     No. 14-60917

supervisor[], motivated by retaliatory animus, took acts intended to cause an
adverse employment action; and (2) those acts were a but-for cause of” the
adverse employment action. Id. at *5.
      Wu has failed to produce sufficient summary evidence that Marcus was
motivated by retaliatory animus. Wu contends that Marcus retaliated against
her for filing EEOC complaints by writing a negative review of her performance
as part of her full professor application. 2 However, this negative review was
not a change in attitude by Marcus following the filing of the EEOC complaint.
Instead, Marcus regarded and reviewed Wu negatively long before she filed
her EEOC complaints. Marcus had previously warned Wu that she was in
danger of not being promoted to full professor. Furthermore, many of the
criticisms within Marcus’s negative review are the same as those aired in his
annual reviews of Wu that predate her EEOC complaints. The substantial
similarities between Marcus’s prior annual reviews and the negative review
recommending against Wu’s promotion negate a retaliatory motive for his
negative assessment. As a result, Wu has failed to produce sufficient evidence
that Marcus acted with retaliatory animus. See id.
      Even if Wu could show that Marcus had a retaliatory motive, Wu has
also failed to produce sufficient summary judgment evidence to raise a fact
issue about whether Marcus’s actions were the but-for cause of her denial of
promotion to full professor. We have noted that “collective decision-making is
less susceptible to influence by an individual with a retaliatory motive.” Strong
v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 806 n.2 (5th Cir. 2007).


      2  Wu also contends that Marcus engaged in retaliatory conduct by failing to ensure
that her promotion application had the requisite four external review letters. However, the
evidence indicates that Marcus was not the individual primarily responsible for obtaining
these external review letters.

                                            5
    Case: 14-60917      Document: 00513211874       Page: 6    Date Filed: 09/29/2015


                                    No. 14-60917

Likewise, the decision at MSU whether to promote an associate professor to
full professor involves many individuals with multiple levels of review. At each
level, the relevant decisionmakers recommended against Wu’s promotion. 3 At
least some of the decisionmakers involved in denying Wu’s application testified
that Marcus’s negative review was not a significant factor in their decision to
deny Wu’s promotion application. For example, the dean testified that he
independently came to some of the same conclusions about Wu’s publication
record that were aired in Marcus’s negative review. Another decisionmaker, a
member of the college committee, testified that he found Marcus’s review
“unhelpful” and that he did not give it much weight when evaluating Wu’s
application. In other words, Wu failed to produce sufficient evidence to raise a
fact question about whether Marcus’s actions, even if motivated by retaliatory
animus, were the but-for cause of Wu’s denied promotion application. As Wu
has thus failed to meet her summary judgment burden on her prima facie case
of retaliation as it relates to her denial of promotion to full professor, it was not
error for the district court to grant summary judgment on this ground. See
Zamora, 2015 WL 4939633, at *5.
             2. Merit-based Pay Raise
      Wu also argues that MSU retaliated against her by giving her a minimal
raise of 1.5% within thirty days of her filing the third EEOC charge. As in the
promotion context, the parties do not dispute that Wu’s EEOC filing is a
protected activity and that receiving an allegedly unfairly low pay raise is an


      3 First, the department promotion-and-tenure committee and the department head,
Marcus, recommended against promotion. Then, both the dean and the college-wide
promotion-and-tenure committee recommended against promotion.          The application
proceeded to the provost, who also recommended against promotion. The president adopted
the provost’s recommendation and denied Wu’s application. Finally, Wu appealed to the
university committee, which affirmed the president’s decision.

                                          6
    Case: 14-60917    Document: 00513211874     Page: 7   Date Filed: 09/29/2015


                                 No. 14-60917

adverse employment action. Thus, the dispute focuses on whether Wu has
presented sufficient evidence to raise a genuine issue of material fact regarding
whether the allegedly low raise can be causally linked to her third EEOC
complaint. See Stewart, 586 F.3d at 331. Though temporal proximity between
the protected activity and the adverse employment action can support a finding
of causation, “temporal proximity alone is insufficient to prove but[-]for
causation.” Strong, 482 F.3d at 808. Wu asserts that the temporal proximity
between the filing of her third EEOC complaint as well as Marcus’s alleged
failure to follow MSU procedure in calculating her pay raise constitutes
sufficient evidence to satisfy the but-for causation requirement needed to show
retaliatory conduct. See Nassar, 133 S. Ct. at 2533.
      Wu has failed to provide sufficient evidence that Marcus failed to follow
MSU procedure in calculating her pay raise. Departmental procedure dictated
that merit-based pay increases should be based primarily on the publication of
books and secondarily on the publication of articles in peer-reviewed journals.
Marcus, in explaining to the members of the department the reasoning behind
the calculation of raises, indicated that about half of the professors in the
department had a book published or about to be published around the time of
his determination. Though Wu published some articles, she does not dispute
that she did not publish a book during the relevant period. Moreover, the raise
Wu received—1.5%—was equal to or greater than the raises received by ten
out of eighteen assistant and associate professors within the department.
Thus, Wu’s raise was comparable to those of her colleagues considering her
productivity for the relevant period.
      As the evidence fails to show that Marcus violated procedure in giving
Wu a 1.5% pay increase, Wu insufficiently relies on temporal proximity alone.
See Strong, 482 F.3d at 808. Accordingly, Wu has failed to establish a prima

                                        7
       Case: 14-60917        Document: 00513211874        Page: 8       Date Filed: 09/29/2015


                                         No. 14-60917

facie case for retaliation as it relates to her merit-based pay increase, and the
district court’s grant of summary judgment was not error. See Nassar, 133 S.
Ct. at 2533.
        B. Exclusion of Expert Testimony
        Finally, Wu challenges the trial outcome only by arguing that the district
court abused its discretion by excluding the testimony of her expert witness
from the trial and by failing to have a Daubert 4 hearing before granting MSU’s
motion in limine to exclude the expert’s testimony.
        Wu proferred an expert report prepared by Dr. Thornton, an economics
professor, that compared the salaries and scholarly output of the twelve
associate professors at MSU’s history department. The report concluded that
the history department’s merit-pay compensation system was based on
subjective and unequal evaluations that placed Wu among the lowest paid of
her peers despite outperforming them in scholarly output.
        The district court found that Dr. Thornton’s report compared the salaries
and scholarly output of associate professors in the history department without
regard to when the scholarship was actually produced. Dr. Thornton’s report
only     considered       cumulative     research     output    when       determining     the
department’s most productive scholars, and did not list research output by
year. This led the district court to find that the report was irrelevant because
the allegedly discriminatory pay increases occurred only from 2008–2013,
while Dr. Thornton’s report examined Wu’s research output for her entire
employment period. 5           The district court did not abuse its discretion by

        4   Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
        5  Wu also argues that the district court erred by failing to hold a Daubert hearing,
but she does not argue that the record was inadequate to make the determination that the
expert’s testimony was irrelevant or that a hearing would have changed the district court’s
decision. The district court thus did not abuse its discretion by failing to hold a Daubert
                                                8
    Case: 14-60917   Document: 00513211874    Page: 9   Date Filed: 09/29/2015


                               No. 14-60917

excluding Dr. Thornton’s testimony.
   AFFIRMED.




hearing.


                                      9
