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

                                                                            FILED
                                                                           April 15, 2008
                                     No. 07-30950                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk



DOCTOR JAMES MURUNGI,

                                                  Plaintiff-Appellant,

v.

XAVIER UNIVERSITY OF LOUISIANA,

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:05-CV-05242


Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
       Dr. James Murungi appeals the district court’s grant of summary
judgment dismissing his sex and national origin discrimination claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. For the
reasons discussed below, we AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-30950

                                I. Background
      Xavier University of Louisiana (“Xavier”) employed Murungi as an
assistant clinical professor on its non-tenure track beginning in August 2000.
He received eleven-month contracts for successive academic years despite a
history of poor student evaluations.        Xavier ultimately declined to rehire
Murungi, who sued under Title VII for failure to promote and failure to renew
his contract.
      In February 2002, Dr. Patricia Lieveld, then Chair of the Division of
Clinical and Administrative Sciences, noted complaints by Murungi’s students
and addressed Murungi’s unwillingness to adopt her substantive suggestions
regarding the content of a lecture. She also suggested that Murungi attend
faculty development programs to improve his teaching. Murungi testified that
Lieveld’s memorandum was “a kooky document.”
      Thereafter, Murungi received a memorandum from Dr. Wayne T. Harris,
Dean of the College of Pharmacy, stating that student comments and evaluation
results indicated a need for Murungi to improve his teaching. Harris noted that
Murungi’s response to Lieveld’s memorandum conveyed a lack of understanding
of the need to formulate a concrete strategy for improving his effectiveness.
      In May 2002, Harris again expressed concern regarding students’ poor
ratings of Murungi’s teaching and requested that Murungi work with Lieveld to
prepare a faculty development plan. Harris conveyed his desire for Murungi to
function as an effective faculty member and his willingness to provide
assistance.
      In January 2005, Dr. Marianne Billeter, a pharmacist employed at
Ochsner Hospital (“Ochsner”), complained about Murungi’s performance with
regard to students at Xavier’s clinical program at Ochsner. Murungi responded
with an email to Billeter calling her allegations “deceitful and disgenuine [sic]”
and generally attacking her treatment of Xavier’s students. Harris subsequently
informed Murungi that his reply email was inappropriate and that because

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Ochsner was an important institutional stakeholder to the College of Pharmacy,
issues with Ochsner must be resolved in a professional, efficient manner. Before
sending the response, Murungi had apparently consulted with and made
revisions suggested by Dr. William Kirchain, Chair of the Division of Clinical
and Administrative Services. Harris was unaware of that interaction when he
sent his memorandum.
      Murungi first sought promotion to associate professor in January 2005.
In a December 2004 evaluation of Murungi, Kirchain had recommended
Murungi for promotion and for retention for the following academic year. On
February 2, 2005, however, Murungi received a letter indicating that Kirchain
was rescinding his recommendation for promotion due to students’ complaints
regarding Murungi’s final examination, his persistently low student evaluations,
and his problems with Ochsner personnel. Subsequently, Dean Harris advised
that, as a result of Murungi’s continued problems with poor student evaluations
and his professional interactions with Ochsner, Harris would recommend that
Xavier not renew Murungi’s contract for the 2006-2007 academic year.
      In June 2005, Murungi was informed that the Rank and Tenure
Committee had been unable to review his promotion request before the end of
the semester but that he would receive consideration as the first candidate when
the committee reconvened in the fall. Before the committee could consider his
request, however, Hurricane Katrina forced Xavier to close, prompting
termination of all faculty contracts as of October 2005. Xavier ultimately
declined to rehire Murungi upon issuing new faculty contracts.
      Murungi, a male of Kenyan ancestry, brought this discrimination lawsuit
complaining of Xavier’s failure to promote him (although Hurricane Katrina
intervened before Xavier made an official decision) and failure to renew his
employment contract.     Xavier filed a motion for summary judgment, and
Murungi argued in response that all faculty members in his division were offered
post-Katrina replacement contracts except for him, even though several had also

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received poor student evaluations. Murungi asserted that student evaluations
are “deeply imperfect tools” and a “weak measure of instructional quality”; that
his evaluation scores were not so low that they reached an alleged “warning
level” referenced in a letter from Kirchain and that other faculty members who
were retained had scores below that level; that the problem with Billeter at
Ochsner was “sad, but not relevant” because Billeter was not a physician, nurse
or patient; and that three of four letters about Murungi from Ochsner personnel
to Xavier were favorable. Finally, Murungi complained that of the four faculty
members seeking promotion in 2005, three women candidates were promoted
while he was ultimately terminated.
      The district court granted Xavier’s motion for summary judgment, finding
that Murungi had failed to establish a prima facie case of discrimination or,
alternatively, that he had failed to establish pretext or a discriminatory
motivating factor in response to Xavier’s proffered reasons for its actions.
Murungi appeals.
                           II. Standard of Review
      We review a district court’s grant of a motion for summary judgment de
novo. Hall v. Gillman Inc., 81 F.3d 35, 36 (5th Cir. 1996) (citation omitted).
Summary judgment is proper only when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). The movant
bears the initial burden of “‘demonstrat[ing] the absence of a genuine issue of
material fact,’ but need not negate the elements of the nonmovant’s case.” Little
v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)). If the movant meets this burden, then “the
nonmovant must go beyond the pleadings and designate specific facts showing
that there is a genuine issue for trial.” Id. (citing Celotex, 477 U.S. at 325).
      During this process “factual controversies [are resolved] in favor of the

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nonmoving party, but only when there is an actual controversy, that is, when
both parties have submitted evidence of contradictory facts.”            Id.   The
materiality of facts depends on the substantive law, and only disputes over
outcome-determinative facts properly preclude summary judgment. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
                                III. Discussion
      A. Exhaustion of Administrative Remedies
      Xavier first argues that Murungi’s claims should have been dismissed
because Murungi did not exhaust his administrative remedies. The district
court noted a lack of direct evidence that Murungi either filed a complaint with
the Equal Employment Opportunity Commission (EEOC) or received a right-to-
sue letter before filing suit. Murungi alludes to receiving an EEOC letter prior
to Hurricane Katrina and complains that Xavier should have raised the issue in
its summary judgment motion so that Murungi could respond. Neither the
parties nor the district court addressed the exhaustion issue with any specificity,
however, and we need not resolve it to decide this appeal. See Pacheco v. Mineta,
448 F.3d 783, 788 n.7 (5th Cir. 2006) (noting disagreement in this circuit on
whether exhaustion of administrative remedies in a Title VII suit is a
jurisdictional requirement or merely a prerequisite to suit subject to waiver and
estoppel; and stating that because neither party has a winning argument, “we
need not take sides in this dispute”).
      B. Review of Summary Judgment Evidence
      Title VII prohibits an employer from discharging or otherwise
discriminating against any individual because of that individual’s sex or national
origin.   42 U.S.C. § 2000e-2(a)(1).     “The Title VII inquiry is whether the
defendant intentionally discriminated against the plaintiff.” Roberson v. Alltel
Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004) (internal quotation marks and
citation omitted). Such discrimination can be demonstrated through either
direct or circumstantial evidence. Nasti v. CIBA Specialty Chems. Corp., 492

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F.3d 589, 593 (5th Cir. 2007).
      Because Murungi presents no direct evidence of discrimination, we
analyze his claim using the burden-shifting framework originally set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973):
      [A] plaintiff must first create a presumption of intentional
      discrimination by establishing a prima facie case. The burden then
      shifts to the employer to articulate a legitimate, non-discriminatory
      reason for its actions. The burden on the employer at this stage is
      one of production, not persuasion; it can involve no credibility
      assessment. If the employer sustains its burden, the prima facie
      case is dissolved, and the burden shifts back to the plaintiff to
      establish either: (1) that the employer’s proffered reason is not true
      but is instead a pretext for discrimination; or (2) that the employer’s
      reason, while true, is not the only reason for its conduct, and
      another motivating factor is the plaintiff’s protected characteristic.

Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (internal quotation
marks and citations omitted).
      To establish a prima facie case of discrimination under Title VII, Murungi
must show that: “(1) [he] is a member of a protected class; (2) [he] was qualified
for the position [he] sought; (3) [he] suffered an adverse employment action; and
(4) others similarly situated but outside the protected class were treated more
favorably.” Id. Reviewing the summary judgment record de novo, we find that
Murungi has failed to establish a prima facie case of discrimination. Although
there may be some evidence of the first three elements, Murungi has failed to
present competent summary judgment evidence on the fourth element of
establishing that others were similarly situated but were treated more favorably.
Although Murungi baldly asserts that several faculty members within his
division received poor student evaluations without attendant notices of
impending termination, he has presented no competent summary judgment
evidence that any of these faculty members had a sustained record of poor
evaluations similar to his or that they had problems similar to his issues with
Ochsner.

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      Further, as the district court found, even assuming arguendo that
Murungi met his initial burden, Xavier would still be entitled to summary
judgment. Xavier has articulated legitimate, non-discriminatory reasons for not
promoting Murungi and for not renewing his contract, including his
longstanding history of poor student evaluations, his students’ recurrent
complaints about his teaching, and his unprofessional response to the Ochsner
complaint. Although Murungi may not believe his student evaluation scores
warrant non-renewal of his contract, employment discrimination laws are "'not
intended to be a vehicle for judicial second-guessing of employment decisions nor
. . . to transform the courts into personnel managers.'" EEOC v. La. Office of
Cmty. Servs., 47 F.3d 1438, 1448 (5th Cir. 1995) (quoting Bienkowski v. Am.
Airlines, Inc., 851 F.2d 1503, 1507–08 (5th Cir. 1988)).
      Once Xavier proffered non-disciminatory reasons for its actions, the
burden shifted back to Murungi, who was required to present evidence of either
pretext or intentional discrimination on Xavier’s part. Murungi testified that
because he was the professor with the lowest salary in his division, he was the
only professor who was not invited back after Hurricane Katrina, and he was the
only professor who was Kenyan, Xavier’s actions “cannot be anything else” but
discrimination. Because Murungi could offer nothing more than his subjective
belief that Xavier discriminated against him and gave pretextual reasons for its
actions, summary judgment was appropriate on this alternative ground. See
Ray v. Tandem Computers, Inc., 63 F.3d 429, 435 (5th Cir. 1995) (“[B]ald
assertions of . . . discrimination are inadequate to permit a finding that
proscribed discrimination motivated [defendant’s] actions against [plaintiff].”);
see also Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir.
1994) (noting that employee’s “self-serving generalized testimony stating her
subjective belief that discrimination occurred . . . is simply insufficient to support
a jury verdict in plaintiff’s favor”).



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                             IV. Conclusion
     Accordingly, finding no error in the district court’s summary judgment on
Murungi’s Title VII claims, we AFFIRM.




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