     Case: 13-11225      Document: 00512832068         Page: 1    Date Filed: 11/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-11225                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
SATOMI NIWAYAMA,                                                        November 10, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

TEXAS TECH UNIVERSITY,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:12-CV-00090


Before DAVIS, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant, Satomi Niwayama (“Niwayama”), a Japanese
woman, appeals the district court’s summary judgment in favor of Defendant-
Appellee, Texas Tech University (“TTU”), dismissing Niwayama’s tenure
denial claim under Title VII and pay disparity claims under Title VII and the
Equal Pay Act (“EPA”). We AFFIRM in part, VACATE in part, and REMAND.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-11225
                                      I.
      Niwayama was hired by TTU in 2004 as an associate professor of
chemistry.   She applied for tenure in 2004, 2005, 2008, and 2009.           Her
application was denied each time by the Provost. Niwayama was notified of
the Provost’s fourth and final decision to deny tenure in May 2010.
      Although the decision to reject Niwayama’s application for tenure was
ultimately the Provost’s, this decision was based on a multi-step process
involving input from the department chairperson, a department committee,
the dean of the college, and a college committee.        When the Provost was
deciding on Niwayama’s fourth and final application for tenure, he had
recommendations in favor of tenure from the head of the college Dean
Schovanec, the college committee, and the department committee. The only
recommendation against tenure was submitted by Dominick Casadonte, the
chair of the department.
      When the Provost denied Niwayama’s fourth and final application for
tenure in the 2009-2010 academic year, this was the last year of Niwayama’s
probationary period as an associate professor. Once tenure was denied at the
conclusion of this probationary period, it was expected that Niwayama’s
position with the university would be terminated. However, unlike on the
three previous tenure denials, Niwayama decided to appeal the Provost’s May
2010 decision to a tenure hearing panel. In November 2010, the five member
panel issued the following findings regarding the Provost’s decision:
             1. Dr. Niwayama was apparently held to a different
                standard than other faculty members tenured at the time
                of her tenure application in regard to grants. She and
                another faculty member brought grants to the University
                when they were hired, yet the other faculty member’s
                grant was considered adequate whereas Dr. Niwayama’s
                was not. . . . [N]either individual’s grant was truly
                written and received while a faculty member at TTU.

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               However, the other faculty member was favorably
               evaluated for tenure largely based upon this grant.
               Further, the grant funds expended by Dr. Niwayama at
               TTU exceeded those of a third faculty member who was
               also granted tenure at TTU.


            2. Dr. Niwayama was apparently held to a different
               standard than other faculty members tenured at the time
               of her tenure application in regard to teaching
               evaluations. Her teaching evaluations were comparable
               to other applicants. Other candidates received early
               tenure with lower student evaluation scores than Dr.
               Niwayama’s. These included a faculty member who was
               tenured in 2007 with overall averages of 3.65 and 3.55,
               and another whose scores were 2.6, 2.95 a year before his
               tenure. Dr. Niwayama’s scores were 3.94, 3.96, while the
               faculty member who started the same year she did and
               received tenure scored 3.95, 3.86. Further, this faculty
               member was allowed one semester with no teaching
               responsibilities, whereas Dr. Niwayama carried an
               additional teaching load.


            Based on our findings, we do not believe that the faculty
            member was fairly evaluated based on consistent application
            of the established standards for tenure . . . .


      As Niwayama explains and as TTU does not contest, the faculty member
mentioned in the passage, whose previous research funding was credited
toward his tenure application was Joachim Weber. TTU also concedes that
Niwayama “had slightly higher teaching evaluations than Weber,” suggesting
that Weber may have been one of the faculty members referenced in paragraph
two of the Tenure Hearing Panel’s findings quoted above. It is also uncontested
that, although Weber and Niwayama were hired during the same year and for




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                                    No. 13-11225
the same compensation, Weber received increasingly higher compensation
than Niwayama during each successive year of their employment. 1
      In spite of the Tenure Hearing Panel’s findings, however, the University
President rejected Niwayama’s appeal of the Provost’s decision in March 2011.
Niwayama then filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) in October 2011.                   On May 14, 2012,
Niwayama filed suit in state court against TTU alleging discriminatory
treatment based on her gender and national origin in violation of Title VII, 42
U.S.C. § 2000e, and the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”). 2 The
alleged discriminatory treatment included TTU’s failure to (1) grant
Niwayama’s tenure as a university professor and (2) pay Niwayama as much
as her male colleagues and non-Japanese female colleague for similar work.
      TTU filed a motion for summary judgment, which the district court
granted. According to the district court, Niwayama’s claims based on tenure
denial were untimely. The district court also concluded that Niwayama’s
claims for pay disparity failed based on a lack of summary judgment evidence
regarding pretext (under Title VII) and regarding TTU’s use of a gender-



      1Below are Niwayama’s and Weber’s salaries from the start of their employment at
TTU until Niwayama was placed on termination track:
          Year                      Niwayama                     Weber
          2004-2005                 $55,000.00                   $55,000.00
          2005-2006                 $56,100.00                   $56,650.00
          2006-2007                 $57,180.00                   $57,741.00
          2007-2008                 $58,872.00                   $59,599.00
          2008-2009                 $59,982.00                   $60,982.00
          2009-2010                 $61,781.46                   $65,811.20


      This chart was submitted by TTU and adopted by the district court in its opinion.
      2   Niwayama also brought claims under Chapter 21 of the Texas Labor Code. The
district court granted summary judgment as to these claims based on untimeliness, which
Niwayama has not challenged in the present appeal.

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                                         No. 13-11225
neutral merit system (under the EPA). This appeal followed.
                                                II.
       Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” At this stage of
litigation, the court must view the evidence in the light most favorable to the
non-movant and may not make credibility determinations. 3
                                               III.
       Niwayama argues that the district court erred in granting summary
judgment for the following reasons: (1) the Lilly Ledbetter Fair Pay Act of
2009 4 (the “Ledbetter Act” or the “Act”) extends the limitation period of
Niwayama’s Title VII tenure denial claim; (2) Niwayama provided sufficient
evidence to create a genuine issue of fact regarding pretext in the Title VII pay
disparity claim based on gender and national origin discrimination; and (3)
TTU failed to prove that its “merit” based system of pay actually explains the
pay differences.
                             A. Title VII Tenure Denial Claim
       Generally, a Title VII claim is timely under 42 U.S.C. § 2000e-5(e)(1) if
it is filed within either 180 days or 300 days 5 of the alleged discriminatory act.
As the Supreme Court explained in Delaware State College v. Ricks, this time
period is deemed to have commenced “at the time the tenure decision was made



       3   Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014).
       4   42 U.S.C. § 2000(e)-5(e)(3)(A).
       5   See Haire v. Bd. of Supervisors of La. State Univ., 719 F.3d 356, 363 n.5 (5th Cir.
2013) (“Under Title VII, a plaintiff alleging gender discrimination must file a complaint with
the EEOC within 180 days of the alleged discriminatory act or within 300 days if the plaintiff
has initially instituted proceedings with a state or local agency with authority to grant
relief.”).

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                                      No. 13-11225
and communicated” to the aggrieved employee. 6
      Accordingly, the date on which this limitation period began to run was
May 2010, when the Provost informed Niwayama of the decision to deny her
application for tenure. Although the President of the University did not finally
reject Niwayama’s appeal and confirm the Provost’s decision until March 2011,
the law is clear that the limitation period is not tolled or affected in any way
by “the pendency of . . . university grievance procedures,” which a plaintiff
voluntarily chose to pursue but legally “need not have pursued” prior to
commencing a Title VII lawsuit. 7 As the district court concluded, the tenure
denial claim expired under 42 U.S.C. § 2000e-5(e)(1) in October 2011, and
Niwayama filed her lawsuit in May 2012.
      Niwayama argues, however, that the limitation analysis is altered by the
Ledbetter Act. The Act provides that “an unlawful employment practice occurs
. . . when a discriminatory compensation decision or other practice is adopted
. . . including each time wages, benefits, or other compensation is paid,
resulting in whole or in part from such a decision or other practice.”                In
Niwayama’s view, because the Provost’s decision to deny her tenure had
consequences for her compensation, the Provost’s decision constituted a
“discriminatory compensation decision” under the Ledbetter Act. Accordingly,
Niwayama argues, a new Title VII claim for denial of tenure accrued each time
she received a paycheck that was affected “in whole or in part” by the Provost’s
allegedly discriminatory decision. As authority, Niwayama cites only to Gentry
v. Jackson State University, 610 F. Supp. 2d 564, 567 (S.D. Miss. 2009).
Niwayama acknowledges, however, that this district court’s decision stands for
“a minority view.”


      6   449 U.S. 250, 258 (1980).
      7   See Holmes v. Texas A&M Univ., 145 F.3d 681, 685 (5th Cir. 1998).

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       Indeed, Niwayama’s argument is contrary to the overwhelming weight
of authority on this issue. Specifically, the Tenth Circuit explained that under
the Ledbetter Act “hiring, firing, promotion, demotion, and transfer decisions,
though often touching on pay, should and do accrue as soon as they are
announced.” 8        Similarly, the District of Columbia Circuit held that the
Ledbetter Act’s use of “the phrase ‘discrimination in compensation’ means
paying different wages or providing different benefits to similarly situated
employees, not promoting one employee but not another to a more
remunerative position.” 9 The Third Circuit also rejected an argument similar
to Niwayama’s because a more “expansive interpretation of ‘other practice’ . . .
would potentially sweep all employment decisions under the ‘other practice’
rubric” set forth in the Ledbetter Act. 10 Finally, this Court in an unpublished
opinion held that the Ledbetter Act does not apply to “discrete acts” by
employers such as “termination, failure to promote, denial of transfer, and
refusal to hire.” 11
       Based on these authorities, therefore, the district court was correct to
conclude that the limitation period under 42 U.S.C. § 2000e-5(e)(1) had run on
May 14, 2012 when Niwayama filed her suit. Accordingly, the district court
correctly dismissed Niwayama’s tenure denial claim under Title VII.
                             B. Title VII Pay Disparity Claim
       In contrast to the Title VII tenure denial claim, the pay disparity claim
falls under the Ledbetter Act and therefore is not time barred. The Ledbetter


       8Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 630-31 (10th Cir. 2012) (citation
and internal quotation marks omitted).
       9   Schuler v. PricewaterhouseCoopers, L.L.P., 595 F.3d 370, 374 (D.C. Cir. 2010).
       10   Noel v. The Boeing Co., 622 F.3d 266, 275 (3d Cir. 2010).
       11 Tillman v. S. Wood Preserving of Hattiesburg, Inc., 377 F. App’x 346, 349-50 & n.2
(5th Cir. 2010).

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Act explicitly excepts pay disparity claims from the Ricks analysis and makes
each paycheck at an allegedly discriminatory rate a separate, discrete act of
discrimination, effectively resetting the statute of limitations for filing an
EEOC charge. 12 Furthermore, the Act allows a plaintiff to recover “back pay
for up to two years preceding the filing of the charge,” provided that the
“unlawful employment practices” that occurred during the filing period are
“similar or related to unlawful employment practices with regard to
discrimination in compensation that occurred outside the time for filing a
charge.” 13
   Niwayama filed a charge of discrimination with the EEOC on October 24,
2011. Therefore, under the Ledbetter Act, Niwayama can obtain relief for
discriminatory pay disparity from October 24, 2009 (two years prior to the
filing of her EEOC charge). It is unclear from the record what time period
Niwayama alleges discriminatory pay under Title VII; 14 however, at most, she
can obtain relief beginning in October 2009.
       As to the substance of this claim, Title VII prohibits discrimination on
the basis of “race, color, religion, sex, or national origin.” 15 The Title VII
inquiry is whether the defendant intentionally discriminated against the
plaintiff based on her gender or national origin. 16                              An intentional
discrimination claim can be established by either direct or circumstantial



       12   Groesch v. City of Springfield, Ill., 635 F.3d 1020, 1024 (7th Cir. 2011).
       1342 U.S.C. § 2000(e)-5(e)(3)(A). TTU does not contest the application of the Ledbetter
Act to Niwayama’s federal pay disparity claims.
       14  Niwayama’s district court complaint and summary judgment evidence fails to
identify the exact dates she alleges she was subjected to discriminatory pay in violation of
Title VII. Niwayama does allege discriminatory pay practices going back to 2004.
       15   42 U.S.C. § 2000(e)-2(a)(1).
       16   Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004).

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evidence. 17 When analyzing a discrimination claim based on circumstantial
evidence, we apply the McDonnell Douglas burden-shifting framework. 18
Under McDonnell Douglas, the plaintiff must demonstrate that she (1) is a
member of a protected class; (2) was qualified for the position she sought or
held; (3) suffered an adverse employment action; and (4) was treated less
favorably than another similarly situated employee outside the protected
group. 19 If the plaintiff succeeds in establishing her prima facie case, the
burden shifts to the defendant to identify a non-discriminatory justification for
the adverse employment action. 20 If the employer does articulate a valid
justification, the burden then shifts back to the plaintiff to demonstrate a fact
issue as to whether the employer’s proffered reason is pretextual. 21
   Niwayama alleges that she was discriminated against because of her
national origin and gender. More specifically, Niwayama claims that she was
not paid the same salary as male and non-Japanese counterparts in the
chemistry department.            Only the issue of pretext is disputed – whether
Niwayama has produced sufficient evidence to show that the reason TTU gave
her for her pay inequality was pretextual. She argues that the summary
judgment evidence was sufficient to carry her burden by showing that she was
treated less favorably than another similarly situated employee.                       We are
satisfied that Niwayama has produced enough evidence to create a genuine
issue of material fact on this element. Joachim Weber, a male assistant
professor at TTU hired at the same time as Niwayama in the same department,


      17   Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005).
      18   Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 & n.11 (5th Cir. 2009).
      19   Haire, 719 F.3d at 363.
      20   Black v. Pan Am. Labs., L.L.C., 646 F.3d 254, 259 (5th Cir. 2011).
      21   Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007).

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received a higher annual salary during the years they taught at TTU.
According to the summary judgment evidence, this inequality occurred despite
Weber’s lower teaching evaluations and similar history of obtaining grants.
   This conclusion is supported by other evidence in the summary judgment
record and tends to support Niwayama’s claim of pretext rather than TTU’s
argument that the pay differential was based on a neutral formula. It is true
that Casadonte, the department chair, stated that the pay disparity affecting
Niwayama resulted from the application of a neutral formula based on
objective measurements of Niwayama’s research funding and teaching
evaluations.    But neither Casadonte nor any other university official was
willing to provide with any precision how the salary is computed. Perhaps
more importantly, the Tenure Hearing Panel disagreed with Casadonte’s
reasoning and determined that Niwayama was held to a heightened standard
in the areas considered, such as funding and teaching evaluations. Because
the same department administrator (Casadonte) considered the same factors
(funding and teaching evaluations) both in issuing the single recommendation
to deny tenure and in applying the payment “formula,” we find a reasonable
jury could make the inference that the payment formula (like the tenure
criteria) was applied selectively and inconsistently. 22
   We are persuaded that the hearing panel’s conclusion that TTU was
applying a selective, inconsistent standard to Niwayama in comparison to
other similarly situated colleagues regarding tenure supports the argument
that some disparity was being applied to her regarding pay. 23


       22We have suggested in several of our decisions, such as E.E.O.C. v. Louisiana Office
of Community Services, 47 F.3d 1438, 1444-46 (5th Cir. 1995), that an inference of pretext
may be drawn based on evidence showing that an employer’s relevant rules and standards
“were not consistently applied.”
        TTU has placed considerable emphasis on Louisa Hope-Weeks, a female professor
       23

who was paid more than most men in the department. But, even if Hope-Weeks was not
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                                       No. 13-11225
   We conclude that Niwayama’s Title VII discriminatory pay claim is limited
to the period of October 2009 (two years prior to filing her EEOC complaint)
until May 2010 when Niwayama was placed on termination track for pay
purposes. TTU has established a policy of denying pay increases while the
employee was on this status.
                                C. Equal Pay Act Claim
       Similar to Niwayama’s pay disparity claim under Title VII, her claim
under the EPA also survives summary judgment. Under the EPA, as codified
at 29 U.S.C. § 206(d):
              “No [covered] employer . . . shall discriminate . . . between
       employees on the basis of sex by paying wages to employees . . . at
       a rate less than the rate at which he pays wages to employees of
       the opposite sex . . . except where such payment is made pursuant
       to (i) a seniority system; (ii) a merit system; (iii) a system which
       measures earnings by quantity or quality of production; or (iv) a
       differential based on any other factor other than sex . . . .”

       The EPA’s burden-shifting framework is similar but not identical to that
applied under Title VII. “‘Once a plaintiff has made her prima facie case by
showing that an employer compensates employees differently for equal work,
the burden shifts to the defendant to’ show by a preponderance of the evidence
that the differential in pay was made pursuant to one of the four enumerated
exceptions.” 24
       While the analysis under the EPA is theoretically different than the
analysis under Title VII, for purposes of this appeal the same facts create a
genuine dispute. Because TTU did not produce the “complicated formula” that


subjected to discrimination, it does not mean that Niwayama failed to show a genuine factual
issue in her Title VII claim. See Walther v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir.
1992).
       24King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 723 (5th Cir. 2011) (quoting Siler–
Khodr v. Univ. of Tex. Health Sci. Ctr. San Antonio, 261 F.3d 542, 546 (5th Cir. 2001)).

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                                No. 13-11225
it relies upon in determining merit raises and the Tenure Hearing Panel
concluded that factors in the formula were being selectively applied, we are
persuaded that Niwayama has produced sufficient evidence to create a genuine
issue of material fact.
                                     IV.
      Because Niwayama’s Title VII tenure denial claim was not brought
timely, we AFFIRM the district court’s summary judgment in favor of TTU on
that claim. We also conclude, however, that Niwayama produced sufficient
evidence to raise a genuine dispute as to material facts regarding her pay
disparity claims under Title VII and the EPA. We therefore VACATE the
district court’s order dismissing the Title VII and EPA pay disparity claims
and REMAND this case to the district court for further proceedings consistent
with this opinion.




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