     Case: 10-30398 Document: 00511373367 Page: 1 Date Filed: 02/04/2011




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

                                                   FILED
                                                                          February 4, 2011

                                         No. 10-30398                          Lyle W. Cayce
                                                                                    Clerk

DARLENE C. GORING,

                                                    Plaintiff-Appellant
v.

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND
AGRICULTURAL AND MECHANICAL COLLEGE,

                                                    Defendant-Appellee




                      Appeal from the United States District Court
                          for the Middle District of Louisiana
                                    C.A. No. 08-634


Before DAVIS and BENAVIDES, Circuit Judges.*
PER CURIAM:**
       Plaintiff-Appellant Darlene C. Goring, an African-American law professor
at the Paul M. Herbert Law Center at Louisiana State University, asserted
claims in the district court for race discrimination under Title VII and 42 U.S.C.
§ 1981 against Defendant-Appellee Board of Supervisors of Louisiana State
University Agricultural and Mechanical College (“LSU”) based primarily on


       *
            This matter is being decided by a quorum. See 28 U.S.C. § 46(d).
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30398

LSU’s failure to grant her a promotion to full professor in 2007. The district
court dismissed all of her claims on summary judgment. Goring raises several
issues on appeal.
           We begin our review of these issues by noting the district court’s
observations about “the lack of clarity and organization that pervades Goring’s
submissions” and that Goring’s “scattershot approach of aggregating facts, then
summarily attaching causes of action hampers the Court’s ability to identify the
specific claims at issue and efficiently address” them. These same problems
affect Goring’s briefs on appeal. Thus, we will not repeat or attempt to organize
all of the miscellaneous facts underlying Goring’s arguments on appeal, which
the district court adequately summarized in its ruling.
       As in other cases, “[i]n employment discrimination cases, the Court
reviews summary judgments de novo, applying the same standard as the district
court.” Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998).
Summary judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” F ED. R. C IV. P ROC. 56(a) (2011).
       Goring primarily argues that LSU violated Title VII by failing to promote
her to full professor in 2007 on the basis of her race, but she has pointed to no
summary judgment evidence casting doubt on the district court’s conclusion that
LSU’s reason for declining to promote her at that time was not a pretext for
racial discrimination.1 Assuming that Goring can establish a prima facie claim
for failure to promote, LSU has presented clear evidence that Goring failed to



       1
         The familiar three-step, burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1981) applies to Goring’s Title VII failure-to-promote claim: (1) an
employee must raise a genuine issue of fact as to each element of the prima facie claim; (2) the
employer must then articulate a legitimate nondiscriminatory reason for its employment
practice; and (3) the employee must then raise a genuine issue of material fact as to whether
the employer’s proffered reason is a pretext for racial discrimination.

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                                         No. 10-30398

apply for full professorship until November 12, approximately two months after
the applicable September 15 deadline. LSU has presented further evidence that
Goring’s untimely application left the faculty committee without the time
necessary to sufficiently review an application for full professorship. Thus, the
evidence convincingly shows that LSU’s faculty committee had a legitimate,
nondiscriminatory reason for declining to consider Goring’s application at that
time. Goring’s argument is also belied by the fact that LSU granted her a
promotion to full professor the following year, after she filed a timely
application.2 Goring fails to rebut this ample evidence of nondiscrimination with
any direct or circumstantial evidence suggesting that the faculty committee’s
adherence to the deadline in this instance was pretextual. Goring attempts to
show that the committee applied the deadline flexibly to the applications of other
non-minority professors, but the record evidence indicates that these other
instances involved merely de minimis variations from the deadline that are
inapposite to Goring’s extremely late application. We are left with Goring’s
subjective belief that the decision was discriminatory, which is insufficient to
create an inference of pretext. See Lawrence v. Univ. of Tex. Med. Branch at
Galveston, 163 F.3d 309, 313 (5th Cir. 1999).
       Goring next futilely argues that we should reverse the district court by
applying the “continuing violation” theory articulated in National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101 (2002) to her failure-to-promote claim. She is
wrong for two basic reasons. First, the district court correctly noted Title VII’s
300-day prescription period 3 and, tallying this period from Goring’s February



       2
           The record indicates that Goring still holds the position of full professor at LSU.
       3
         A different period of limitations may have applied to Goring’s claims if she had raised
them under 42 U.S.C. § 1983, which applies to state actors like LSU. However, she asserted
her claims under 42 U.S.C. § 1981, which applies only to private actors. Thus, the limitations
period for § 1981 is irrelevant and Goring’s only valid claims are under Title VII.

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2008 complaint, refused to consider any claim based on a discrete act of
discrimination that may have occurred before April 2007. Id. at 113 (holding
that “discrete discriminatory acts” such as failure to promote “are not actionable
if time-barred, even when they are related to acts alleged in timely filed
charges.”). Second, even if the court were to consider all of the facts that
occurred prior to April 2007 in evaluating Goring’s claim that LSU discriminated
against her in November 2007, Goring has failed to demonstrate that these facts
would have any bearing on our conclusion that LSU’s reason for declining to
consider Goring’s November 2007 application was not pretextual.4
       We also reject Goring’s argument that she has created a genuine question
as to whether she suffered a retaliatory adverse employment action.5 Goring’s
scattershot aggregation of facts regarding LSU’s alleged acts of retaliation falls
far short of the applicable standard for stating an adverse employment action
established by the Supreme Court in Burlington Northern & Santa Fe Railway
Co. v. White, 548 U.S. 53, 57 (2006) (holding that for employment actions to be
considered adverse in the retaliation context, they “must be harmful to the point
that they could well dissuade a reasonable worker from making or supporting
a charge of discrimination.”). For instance, Goring argues inter alia that LSU
retaliated against her by undertaking a “post-tenure review” of her classroom
teaching. LSU has countered, however, with unrebutted evidence that the law
school chancellor initiated this review—which has not resulted in any alteration


       4
         Although the continuing violation theory applies to Goring’s hostile-work-environment
claim, see id. at 114-115 (distinguishing hostile work environment claims, which are “different
in kind from discrete acts” because “[t]heir very nature involves repeated conduct”), this claim
is wholly unsupported by the summary judgment evidence regardless of the time frame
considered, as the district court correctly held.
       5
         To establish a prima facie claim for Title VII retaliation, Goring must show that (1)
she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) a
causal link existed between the activity and the adverse employment action. See Septimus v.
Univ. of Houston, 399 F.3d 601, 610 (5th Cir. 2005).

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in the terms or conditions of Goring’s employment—because of vehement
complaints from a number of students about Goring’s performance in one of her
classes. Thus, this “post-tenure review” obviously falls short of the Burlington
Northern standard, given that a reasonable employee would not expect to be
insulated from review of her questionable job performance simply because she
filed a prior complaint of discrimination. Moreover, these facts demonstrate that
Goring cannot establish a causal connection between her February 2008
complaint of discrimination and LSU’s review of her classroom performance.
Goring has similarly failed to present evidence that retaliation for her protected
activity was a motivating factor for any of LSU’s other actions that Goring
attempts to categorize as retaliatory.
      Finally, Goring advances the meritless argument that the district court
erred in dismissing her disparate pay claim. To state a prima facie claim for
disparate pay, a plaintiff must show that she was a member of a protected class
and was paid less than a non-member for substantially the same job
responsibilities. See Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 522 (5th
Cir. 2008). This requires showing that her circumstances were “nearly identical”
to those of a better-paid, non-protected employee. Id. The only evidence Goring
has offered in support of her claim, however, is an allegation in her affidavit that
she was paid less for directing a legal clinic than a non-minority professor was
paid for directing a different legal clinic. LSU correctly asserts that this cursory
affidavit testimony, even take as true, does not support the view that Goring’s
responsibilities were substantially the same or that her circumstances were
nearly identical to her comparator’s. Therefore, Goring’s record evidence does
not create genuine questions of fact regarding the required elements of her
claim. F ED. R. C IV. P ROC. 56(c)(1)(B) (2011) (a party asserting that a fact cannot
be genuinely disputed may support the assertion by citing to particular
materials in the record or “showing that the materials cited do not establish the

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absence or presence or a genuine dispute . . . .”); Thomas v. Barton Lodge II, Ltd.,
174 F.3d 636, 644 (5th Cir. 1999) (“When the moving party alleges that there is
an absence of evidence necessary to prove a specific element of a case, the
nonmoving party bears the burden of presenting evidence that provides a
genuine issue for trial.”) (internal citation omitted).
      For all of these reasons and the reasons assigned by the district court in
its thorough ruling of April 13, 2010, the judgment of the district court is
AFFIRMED.




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