                         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.

*****************************************************************


                            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).

                                    2
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

                                            3
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.

                                       4
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


                                       5
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


                                    6
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


                                           7
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


                                     8
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

                                           9
           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

                                          10
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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