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

                                    No. 15-30559                               FILED
                                  Summary Calendar                       March 11, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
ARTHUR MOGHALU,

              Plaintiff - Appellant

v.

BOARD OF SUPERVISORS FOR THE UNIVERSITY OF LOUISIANA
SYSTEM FOR NORTHWESTERN; JOE MORRIS,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:11-CV-2203


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Arthur Moghalu (“Moghalu”) sued his former
employer (“Defendant”) for violations of Title VII of the Civil Rights Act of 1964
(“Title VII”), alleging that he was terminated because of his race and national
origin. The case proceeded to a jury trial, and at the close of Moghalu’s case-in-




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30559
chief, the district court granted Defendant’s Rule 50 motion for judgment as a
matter of law. We now AFFIRM.
                             I. BACKGROUND
      Moghalu, an African-American with dual citizenship in the United
States and Nigeria, applied for a position as an Assistant Professor in the
Department of Criminal Justice at Northwestern State University (“NSU”) in
2006. He was interviewed by Joe Morris (“Morris”), the head of the department
(then a division of the larger School of Social Sciences), and Morris
subsequently recommended to the Provost and Vice President of Academic
Affairs that Moghalu be hired. Morris’ recommendation was accepted, and
Moghalu was offered employment at NSU in early August of 2006. Moghalu’s
employment contract provided for a 9-month term and was subject to review
and renewal on an annual basis. At the time of Moghalu’s hiring, he had
attained the doctoral status of “ABD,” or “all but dissertation,” and he
represented to Morris that he anticipated completing his dissertation (and thus
obtaining his PhD) by December of 2006. Unfortunately, Moghalu’s projection
was inaccurate—although he reaffirmed his intention to obtain his doctorate
in 2007 and 2008 and was repeatedly prompted by Morris to do so, he did not
complete his dissertation during his employment at NSU.
      More generally, Moghalu’s time at NSU appears to have been fraught
with acrimony. Morris and other NSU professors frequently received
complaints from students about Moghalu’s harsh demeanor, quick temper, and
overall intractability as a teacher. In Moghalu’s 2006 and 2007 annual
evaluations, Morris suggested that Moghalu “could be more positive” in his
interactions with students. Moghalu, for his part, began to believe that Morris
and others in the department were systematically undermining his
relationships with students and conspiring to sabotage his career. From
Moghalu’s perspective, these suspicions manifested themselves in (1) Morris’
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orchestration of a phony fender-bender incident in the faculty parking lot, (2)
Morris’ intentional exclusion of a significant portion of Moghalu’s academic
work    from   a   department   newsletter,   and   (3)   Morris’   surreptitious
machinations to manipulate Moghalu’s course assignments and convince other
faculty members that Moghalu should be fired. The record is clear that Morris
did indeed convene a retention committee meeting in March of 2008 to consider
whether Moghalu’s contract should be renewed. The committee, which
consisted of four members of the Department of Criminal Justice and one
faculty member from outside the department, recommended that Moghalu be
terminated. The recommendation was ultimately accepted after consideration
by the Board of Supervisors for the University of Louisiana System, and the
Provost and Vice President of Academic Affairs notified Moghalu in May of
2008 that he would not be retained at the conclusion of his terminal one-year
contract (which would expire in May of 2009).
       In the interim, and having caught wind of the committee’s vote not to
renew his contract, Moghalu filed a grievance against Morris with NSU. The
grievance focused on many of the incidents previously mentioned (including
course manipulation and the fender-bender) and alleged that Moghalu had
been the subject of continuing racial discrimination. NSU’s independent
grievance committee held a hearing on Moghalu’s claims in August of 2008,
and after receiving evidence and hearing testimony for two days, the
committee concluded there was no merit to the grievance.
       Moghalu subsequently filed a charge of discrimination with the Equal
Employment Opportunity Commission and received a right-to-sue letter in late
2010. He initiated the present action on January 23, 2011, alleging that NSU
terminated him because of his race and national origin in violation of Title




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VII. 1 The case proceeded to a jury trial, 2 during which Moghalu (appearing pro
se) called almost exclusively hostile witnesses from NSU in his case-in-chief.
Defendant took each of Moghalu’s witnesses (except for Morris and Lisa Abney,
the Dean of the College of Liberal Arts) on direct immediately following
Moghalu’s examinations in order to “expedite” the process, and Defendant
indicated at the close of Moghalu’s evidence that it intended to call only Morris
and Abney (both of whom Moghalu had already extensively examined) as its
own witnesses in its case-in-chief. Before doing so, however, Defendant moved
for judgment as a matter of law under Federal Rule of Civil Procedure 50(a),
arguing that (1) there was “no direct evidence” of discrimination, and (2) the
evidence adduced by Moghalu was “insufficient to form the basis of
circumstantial evidence of discrimination” because there was no “proof that it
had anything to do with either [the fact] that he was black or Nigerian.” The
district court granted Defendant’s motion and stated its reasons orally, noting
that the question was “whether we reach[ed] a satisfactory presentation of a
prima facie case of discrimination in the first place” and concluding that there
was not a sufficient evidentiary basis to “find that racial discrimination [had]
been proved by a preponderance of the evidence.” Moghalu now appeals.
                                 II. DISCUSSION
      “Where, as here, the district court grants the defendant’s motion for
judgment as a matter of law under Federal Rule of Civil Procedure 50 after the
close of the plaintiff’s case in chief, ‘[w]e review the district court’s ruling de
novo, applying the same Rule 50 standard as did the district court.’” Fairchild
v. All American Check Cashing, Inc., __F.3d__, No. 15-60190, 2016 WL 360599,


      1  Moghalu also alleged retaliation and brought claims under 42 U.S.C. § 1981 and
§ 1983 against both the Board of Supervisors and Morris. The § 1981 and § 1983 claims were
dismissed, and Moghalu raises only the Title VII disparate treatment claim on appeal.
       2 It does not appear that Defendant ever filed a motion for summary judgment on

Moghalu’s Title VII claim.
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at *4 (5th Cir. Jan. 27, 2016) (quoting Brennan’s Inc. v. Dickie Brennan & Co.
Inc., 376 F.3d 356, 362 (5th Cir. 2004)). Under Rule 50, judgment as a matter
of law is warranted “[i]f a party has been fully heard on an issue during a jury
trial and the court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue.” FED. R. CIV. P.
50(a)(1). A legally sufficient evidentiary basis is lacking if “the facts and
inferences point so strongly and overwhelmingly in the movant’s favor that
reasonable jurors could not reach a contrary verdict.” Brennan’s, 376 F.3d at
362 (citing Coffel v. Stryker Corp., 284 F.3d 625, 630 (5th Cir. 2002)). “In
considering a Rule 50 motion, the court must review all of the evidence in the
record, drawing all reasonable inferences in favor of the nonmoving party,” and
“the court may not make credibility determinations or weigh the evidence, as
those are jury functions.” Id. (citing Reeves v. Sanderson Plumbing Prods. Inc.,
530 U.S. 133, 150 (2000)).
      Title VII makes it unlawful for a covered employer “to discharge any
individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). Liability on a claim that an employer intentionally discharged
an employee because of race or national origin—i.e., a “disparate treatment”
claim—“depends on whether the protected trait actually motivated the
employer’s decision.” Young v. United Parcel Service, Inc., 135 S.Ct. 1338, 1345
(2015) (quoting Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003)). “[A]
plaintiff can prove disparate treatment either (1) by direct evidence that a
workplace . . . decision relied expressly on a protected characteristic, or (2) by




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using the burden-shifting framework set forth in McDonnell Douglas.” 3 Id. The
McDonnell Douglas framework in turn requires a plaintiff to establish, at the
threshold, a prima facie case of discrimination by showing that “(1) he is a
member of a protected class, (2) he was qualified for the position at issue, (3)
he was the subject of an adverse employment action, and (4) he was treated
less favorably because of his membership in that protected class than were
other similarly situated employees who were not members of the protected
class, under nearly identical circumstances.” Lee v. Kansas City S. Ry. Co., 574
F.3d 253, 259 (5th Cir. 2009). If the plaintiff succeeds in establishing a prima
facie case of discrimination, “the burden then shifts to the employer to produce
evidence that its actions were justified by a legitimate, nondiscriminatory
reason.” Raggs v. Miss. Power & Light Co., 278 F.3d 463, 468 (5th Cir. 2002).
This burden of production involves “no credibility assessment,” and once it is
met, the plaintiff (who at all times retains the ultimate burden of persuasion)
has the “opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant [i.e., the employer] were not its
true reasons, but were a pretext for discrimination.” Fairchild, 2016 WL
360599, at *6 (quoting Young, 135 S.Ct. at 1345). The plaintiff can also
alternatively prove that “the employer’s reason[s], while true,” were not the
“only . . . reasons for its conduct, [as] another ‘motivating factor’ [was] the




       3  Moghalu does not argue on appeal that there was any direct evidence of
discrimination, and our independent review of the record reveals none. While Moghalu did
testify that he “specifically heard” Dr. Pedro (who participated in the committee decision
recommending Moghalu’s non-retention) use a racial slur in reference to him, there is no
indication that the slur was “proximate in time to the [adverse employment action]” or
“related to the employment decision at issue.” Yul Chu v. Miss. State Univ., 592 F. App’x 260,
264 (5th Cir. 2014) (quoting Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996),
abrogated on other grounds as recognized in Kelly v. Costco Wholesale Corp., No. 14-51168,
2015 WL 8527340, at *3 (5th Cir. Dec. 10. 2015)).
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                                     No. 15-30559
plaintiff’s protected characteristic.” Burrell v. Dr. Pepper/Seven Up Bottling
Grp., Inc., 482 F.3d 408, 412 (5th Cir. 2007).
      In the context of a Rule 50 motion, “a plaintiff’s prima facie case,
combined with sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude that the employer
unlawfully discriminated.” Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220
(5th Cir. 2001) (quoting Reeves, 530 U.S. at 148). However, “[w]hether
judgment as a matter of law is appropriate in any particular case will depend
on a number of factors,” including “the strength of the plaintiff’s prima facie
case, the probative value of the proof that the employer’s explanation is false,
and any other evidence that supports the employer’s case and that properly
may be considered on a motion for judgment as a matter of law.” Id. (quoting
Reeves, 530 U.S. at 148–49). This court recently noted that if an employer has
met its burden of producing nondiscriminatory reasons for the action taken,
then the plaintiff, in order to survive a Rule 50 motion at the close of his case-
in-chief, must “show that a reasonable trier of fact could conclude that [the
employer’s] offered reasons were pretextual” by “put[ting] forward evidence
rebutting each of the nondiscriminatory reasons the employer articulates.”
Fairchild, 2016 WL 360599, at *6 (quoting Wallace, 271 F.3d at 220). Of course,
this burden depends on the threshold assumption that “a reasonable trier of
fact could find that [the plaintiff] established [his] prima facie case.” Id.
      There is no dispute in the present case that Moghalu met the first three
elements of his prima facie burden. Moghalu argues that he met the fourth
element as well because his retention was dependent on a PhD requirement
that white professors in the department were not subject to. 4 However,


      4 Moghalu also claims that he met an “alternative framing” of the fourth prima facie
element (which we have sometimes used) by showing that he was “replaced by someone from
outside his protected group.” See McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir.
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Moghalu’s argument misconstrues the nature of the relevant inquiry, which is
whether he has shown less favorable treatment than similarly situated
employees “under nearly identical circumstances.” Lee, 574 F.3d at 259. We
have explained that to establish this fourth element, a plaintiff “is required to
show . . . that his ‘conduct that drew the adverse employment decision [was]
nearly identical to that of the proffered comparator who allegedly drew
dissimilar employment decisions.’” Paske v. Fitzgerald, 785 F.3d 977, 985 (5th
Cir. 2015) (emphasis added) (quoting Lee, 574 F.3d at 260). In this regard, it is
true that Moghalu adduced evidence suggesting that Morris wished to see him
terminated because he never obtained his PhD, and other white professors
were retained (in some cases even receiving tenure) despite lacking education
beyond a master’s degree. However, the record also makes clear that NSU
needed to employ a certain number of PhDs in order to maintain its
accreditation, and it was Moghalu who represented that he anticipated having
a PhD within four months of being hired. Furthermore, Moghalu continually
reaffirmed—in response to inquiries from Morris—that he would obtain the
degree (yet never did). Based on this evidence, Moghalu wholly failed to proffer
any comparators who made similar representations at the time of hiring and
were retained despite their refusal to follow through on those representations.
Additionally, the committee members who voted to recommend Moghalu’s
termination independently testified that their votes in favor of non-retention
stemmed from Moghalu’s mistreatment of students. With respect to this aspect
of the “conduct that drew the adverse employment decision,” Moghalu once
again failed to proffer a comparator who was retained despite engaging in


2007). Moghalu contends that “a careful reading of the testimony” reveals such a
replacement, because Morris testified that there had only ever been one other black professor
in the department (who resigned before Moghalu came to NSU). Even drawing reasonable
inferences in Moghalu’s favor, however, this testimony does nothing to suggest that Moghalu
was replaced at all, let alone that he was replaced with someone outside his protected group.
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comparably serious conduct. Thus, we conclude that the behavior of any
ostensible comparators who lacked PhDs was “not even close to being ‘nearly
identical’” to Moghalu’s. 5 See id. (concluding that the behavior of a plaintiff
police officer, who was terminated for “refusing [a] drug test” and “conduct
unbecoming an officer,” was not “nearly identical” to the behavior of a
comparator officer who lost his firearm, “failed to report the theft,” and then
carried a “personal firearm while on duty”). This being the case, Moghalu failed
to adduce evidence from which “a reasonable trier of fact could find that [he]
established [his] prima facie case.” Fairchild, 2016 WL 360599, at *6.
       We accordingly agree with the district court that, because Moghalu failed
to “reach a satisfactory presentation of a prima facie case of discrimination,” a
reasonable jury would not have a legally sufficient evidentiary basis to find for
him on his Title VII disparate treatment claim. 6 Judgment as a matter of law
was thus warranted and proper. 7



       5  We note that to the extent the inquiry under the fourth element of the prima facie
case involves an employer’s proffered reasons for terminating an employee, there is
considerable overlap with the “nondiscriminatory reason” and “pretext” prongs of the
McDonnell Douglas framework. However, as we stated in a recent case, the plaintiff must
first “establish a prima facie case by pointing to an appropriate comparator” before the
“pretext issue become[s] relevant.” Paske, 785 F.3d at 985 n.8. Thus, despite the fact that the
record is replete with legitimate nondiscriminatory reasons for Moghalu’s termination, we do
not reach the question of whether Moghalu proffered evidence of pretext beyond his failure
to present a suitable comparator who was retained.
        6 Moghalu also asserts that Defendant’s Rule 50 motion was deficient, and he cites a

Second Circuit case for the proposition that a Rule 50 motion must “identify the specific
element that the defendant contends is insufficiently supported.” Wimmer v. Suffolk Cty.
Police Dep’t, 176 F.3d 125, 136 (2d Cir. 1999). Based on this caselaw, Moghalu contends that
Defendant’s oral motion was improper because it “failed to articulate any of the elements of
a prima facie case of discrimination.” This argument, however, confuses the elements of a
Title VII disparate treatment claim with the elements of the McDonnell Douglas burden-
shifting framework for proving discrimination through circumstantial evidence. Indeed, as
noted above, Defendant did specifically identify its contention that Moghalu had failed to
adduce evidence linking his termination to his race or national origin, and the district court
agreed. As such, there is no merit to Moghalu’s argument on this point.
        7 Our decision today stems solely from our independent review of the record and trial

transcript, which fails to support Moghalu’s argument on appeal and does not provide a basis
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                                       No. 15-30559
       AFFIRMED.




for overturning the district court’s ruling on the Rule 50 motion. We note that we were wholly
unaided by Defendant’s elliptical (bordering on incomprehensible) brief. Indeed, the only
point on which Defendant made a cogent argument in support of the district court’s judgment
relates to an evidentiary ruling that Moghalu does not raise on appeal.

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