                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                        In The United States Court Of Appeals                          February 7, 2007
                                For The Fifth Circuit
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                          No. 05-10800
                                        Summary Calendar


JAMES D. WARD, PhD.

               Plaintiff — Appellant,

               v.

MIDWESTERN STATE UNIVERSITY,

               Defendant — Appellee.



                         Appeal from the United States District Court
                             For the Northern District of Texas
                                     No. 7:04-CV-128


Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

       Dr. James D. Ward sued Midwestern State University (MSU), alleging race

discrimination in violation of 42 U.S.C. §§ 1981, 1981a, and 1983, and Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e (Title VII). The district court granted MSU’s motion

to dismiss Ward’s section 1981, 1981a, and 1983 claims and granted summary judgment for

MSU on Ward’s Title VII claims. Ward appeals the grant of summary judgment on his Title


       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
VII claims. We affirm.

                                               I

       MSU offered and Ward, an African-American male, accepted, on a contract basis, the

positions of Associate Professor of Public Administration and Coordinator of the Masters in

Public Administration program in the College of Health and Human Services. The associate

professor position was a tenure-track position that commenced in September 2001, and Ward

was to be considered for tenure “no earlier than 2003 and no later than 2007, provided that

[he] meet all other requirements for this consideration.”

       In December 2001, Dr. Susan Sportsman, Dean of the College of Health and Human

Services, asked Ward to step down from the coordinator position without a concomitant

reduction in salary. On October 14, 2002, Ward applied for tenure. In a letter dated October

15, 2002, Sportsman informed Ward that he would not receive a contract to teach at MSU

for the 2003–2004 academic year. Ward alleges that MSU discriminated against him

because of his race by removing him from the coordinator position, denying him tenure, and

refusing to renew his teaching contract.

                                              II

       We review a district court’s grant of summary judgment de novo.1 Summary

judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue



       1
        Pegram v. Honeywell, Inc., 361 F.3d 272, 278 (5th Cir. 2004).

                                              2
as to any material fact and that the moving party is entitled to a judgment as a matter of

law.”2 An issue as to a material fact is “genuine” if the evidence would permit a reasonable

jury to return a verdict for the non-moving party.3 We construe the evidence in the light most

favorable to the non-moving party and draw all reasonable inferences in his favor.4 “We may

affirm summary judgment on any legal ground raised below, even if it was not the basis for

the district court’s decision.”5

       McDonnell Douglas Corp. v. Green6 and its progeny establish the burden-shifting

analysis to be applied to Title VII discrimination claims. In order to overcome a motion for

summary judgment on his Title VII discrimination claims, the plaintiff must first establish

a prima facie case of discrimination, which entitles him to a presumption of discrimination.7

The defendant may rebut this presumption by presenting a legitimate, nondiscriminatory

reason for its actions.8 Under the traditional McDonnell Douglas analysis, the plaintiff must

then offer sufficient evidence to create a genuine issue of material fact that the defendant’s




       2
        FED. R. CIV. P. 56(c).
       3
        Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
       4
        Id.
       5
        Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003).
       6
        411 U.S. 792 (1973).
       7
        Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 404 (5th Cir. 1999).
       8
        Id.

                                                  3
proffered reason for its action is pretextual.9 In “mixed-motive” cases, this court applies the

“modified-McDonnell Douglas” framework.10 Under this mixed-motive framework, after

the defendant has presented a legitimate, nondiscriminatory reason, the plaintiff must offer

sufficient evidence to create a genuine issue of material fact that the defendant’s reason,

while true, is only one of the reasons for its conduct, and the plaintiff’s race is another

“motivating factor” for the defendant’s conduct.11

        “To establish a prima facie case, a plaintiff need only make a very minimal

showing.”12 Therefore, we assume without deciding that Ward established a prima facie

case.

        Ward asserts that at the second step of the burden-shifting analysis, MSU failed to

present legitimate, nondiscriminatory reasons for its actions. At this step of the analysis, the

defendant has the burden of production, not persuasion.13 “‘[T]he employer’s burden is

satisfied if he simply explains what he has done or produc[es] evidence of legitimate




        9
         Id.
        10
         Rachid v. Jack In the Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004); see also Desert Palace,
Inc. v. Costa, 539 U.S. 90, 99-102 (2003).
        11
             Rachid, 376 F.3d at 312; see also Desert Palace, 539 U.S. at 99-102.
        12
             Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996).
        13
             Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).

                                                    4
nondiscriminatory reasons.’”14 This explanation “must be clear and reasonably specific.”15

MSU relied on Sportsman’s affidavit. Ward first alleges that the district court erred in

considering that affidavit because it was vague, speculative, and conclusory and because

MSU failed to attach referenced documents. While Ward did make three hearsay objections

to several parts of Sportsman’s affidavit, which the district court sustained, Ward never

objected to any part of the affidavit on the grounds that it was vague, speculative, or

conclusory or that MSU failed to attach referenced materials. Therefore, Ward has waived

these objections to the affidavit, and the district court properly considered the portions of the

affidavit to which there was no objection.16

       Sportsman’s affidavit states that Ward was removed from the coordinator position and

his contract was not renewed based on several incidents. First, Sportsman “observed Dr.

Ward standing and shouting at other MPA faculty during an MPA faculty meeting,” and

Sportsman “intervened, stopped the meeting, and asked Dr. Ward and another professor to

join [her] to discuss the situation.” In another incident, “Dr. Ward, through an email

disbursed to all MPA faculty [in November 2001], chastised a fellow MPA faculty member

for the presentation of an MPA candidate.” Finally, Sportsman stated that “beginning in the


       14
          Id. at 256 (quoting Bd. of Trs. of Keene State Coll. v. Sweeney, 439 U.S. 24, 25 n.2 (1978))
(internal quotations omitted).
       15
            Id. at 258.
       16
          See Munoz v. Int’l Alliance of Theatrical Stage Employees & Moving Picture Mach.
Operators, 563 F.2d 205, 214 (5th Cir. 1977) (“Inadmissable material that is considered by a district
court without challenge may support a summary judgment. Here there was no timely objection and
it is deemed waived.”).

                                                  5
Fall, 2002 semester, Dr. Ward was absent from all College Faculty meetings and the

mandatory MPA faculty meetings.” Sportsman states that Ward was removed from his

position and his contract was not renewed because these incidents demonstrated that Ward

lacked the interpersonal skills necessary to serve as coordinator or associate professor. These

proffered reasons are clear and reasonably specific, and MSU met its burden of production.

MSU, therefore, rebutted the presumption of discrimination.

         Under the final step of the burden-shifting analysis, Ward must present sufficient

evidence to create a genuine issue of material fact that MSU’s proffered reasons are

pretextual. The district court determined, under the traditional McDonnell Douglas analysis,

that Ward failed to raise a genuine issue of material fact that MSU’s proffered legitimate,

nondiscriminatory reasons were pretextual.

         Ward contends that a genuine issue of material fact exists regarding whether MSU’s

proffered reasons are pretextual. In order to raise a genuine issue of material fact, the non-

movant must come forward with “specific facts.”17 “Conclus[ory] allegations and denials,

speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation

do not adequately substitute for specific facts showing a genuine issue for trial.”18 Ward

alleges that the “purposefully vague and conclusory” statements in Sportsman’s affidavit

raise an inference that MSU’s proffered reasons were pretextual. As determined earlier,


         17
              FED. R. CIV. P. 56(e); TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.
2002).
         18
              TIG Ins. Co., 276 F.3d at 759.

                                                      6
Sportsman’s affidavit contains clear and reasonably specific reasons for MSU’s actions;

therefore, Ward makes an improbable inference that is insufficient to raise a genuine fact

issue for trial.

        Next, Ward stresses that he was better qualified than a white colleague who was

granted tenure. To support this allegation, Ward submits his own deposition testimony in

which he claims to be better qualified and better published than his colleague, but this

evidence is mere speculation. Ward fails to refer this court to any particularized evidence

to support his subjective view that he was better qualified than his colleague.19

        Ward also alleges that the facts that there were only four African-American faculty

out of approximately 500 MSU faculty members and that another African-American faculty

member in the College of Health and Human Services was denied tenure raise a fact issue

that MSU’s proffered reasons were pretextual. Again, Ward relies on his own speculative

deposition testimony to support these allegations, and he fails to present any particularized

evidence to support these allegations. We conclude that Ward’s evidence is insufficient to

raise a genuine issue of material fact as to whether MSU’s proffered reasons for its actions

was pretext for unlawful discrimination.

        Ward also argues that the district court improperly failed to apply the mixed-motive

theory to his Title VII claims. This argument, however, falls outside the scope of our


        19
          See Ross v. Univ. of Tex. at San Antonio, 139 F.3d 521, 526-27 (5th Cir. 1998) (holding
that the plaintiff’s generalized statements about relative qualifications or treatment of similarly
situated employees is insufficient to defeat summary judgment); Nichols v. Loral Vought Sys. Corp.,
81 F.3d 38, 42 (5th Cir. 1996) (same).

                                                7
appellate review because Ward waived this allegation by failing to present any arguments

related to the mixed-motive analysis in the district court.20

       We therefore AFFIRM the district court’s grant of summary judgment.




       20
          Jones v. Overnite Transp. Co., No. 05-20363, 2006 WL 3627148, at *5 n.2 (5th Cir. Dec.
13, 2006) (“A plaintiff must raise his mixed-motive theory in the district court to preserve the
argument on appeal.”) (per curiam) (citing Carthon v. Johnson Controls, Inc., 100 F. App’x 993, 997
(5th Cir. 2004)); see also Frank C. Bailey Enters., Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir.
1978) (per curiam) (“[A]n appellate court, in reviewing a summary judgment order, can only consider
those matters presented to the district court.”).

                                                  8
