                 United States Court of Appeals,

                            Fifth Circuit.

                             No. 92-7461.

   Dr. Bettye R. LANGLEY, Plaintiff-Appellee Cross-Appellant,

                                  v.

 JACKSON STATE UNIVERSITY and Dr. Herman Smith, in his Official
Capacity, Defendants-Appellants Cross-Appellees.

                            Feb. 28, 1994.

Appeal from the United States District Court for the Southern
District of Mississippi.

Before DUHÉ and EMILIO M. GARZA, Circuit Judges, and BLACK,*
District Judge.

     EMILIO M. GARZA, Circuit Judge:

     Jackson State University ("JSU") appeals the district court's

factual finding that JSU breached the terms and conditions of an

agreement which settled a prior racial discrimination suit brought

by Dr. Bettye R. Langley.    Langley cross-appeals, contending that

the district court improperly allocated the burden of proof in

finding that she failed to prove discrimination based upon her race

or retaliation for bringing a prior discrimination suit.   For the

reasons set forth below, we affirm in part, and vacate and dismiss

in part.

                                  I

     In 1977, Dr. Langley, a white female, began working at JSU, a

predominately black institution in Jackson, Mississippi, as a

professor of elementary and early childhood education in JSU's

     *
      Chief Judge of the Southern District of Texas, sitting by
designation.

                                  1
School of Education.        In 1986, Dr. Langley filed a discrimination

suit against JSU, pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., claiming, inter alia, that she was

being denied the opportunity to conduct a child abuse workshop

because of her race.        A year later, Langley and JSU entered into a

settlement agreement.        The district court, noting that the parties

had stipulated to dismiss the action, ordered that the action be

dismissed with prejudice. The court, however, neither approved nor

incorporated the settlement agreement into its order of dismissal.

The   court    also   did   not   indicate   that   it   intended   to   retain

jurisdiction over future actions brought to enforce the settlement

agreement.1

      In 1990, Dr. Langley filed another Title VII suit against JSU,

claiming that JSU had discriminated against her because of her race

and in retaliation for her prior Title VII suit.                Dr. Langley

claimed in particular that Dr. Johnnie Mills, a black female and

academic dean of the School of Education, and Dr. Anita Hall, a

black female and chairperson of Dr. Langley's academic department,

constantly required her to teach an overload, refused to timely pay

her, refused to approve her workshops in accordance with JSU

policy, denied her merit pay increases, refused to provide her with


      1
       The district court's order of dismissal provided:

              BY STIPULATION of the undersigned representatives for
              all parties in this action, pursuant to Rule 41 of the
              Federal Rules of Civil Procedure, it is hereby finally
              ordered, adjudged and decreed that the action is
              dismissed, with prejudice, with the parties to bear
              their own costs and attorney fees.

                                       2
office space, furniture and telephone service, assigned her to

double registration duties, and denied her sabbatical leave and

travel expenses, all on account of Dr. Langley's race.                In a

separate action, Dr. Langley further claimed that JSU was violating

the terms and conditions of the settlement agreement regarding the

prior Title VII suit.    The two actions were consolidated before

trial.2

     After a six-day bench trial, the district court issued a

memorandum opinion and order, finding that Dr. Langley did not

"sustain[ ] her burden of persuasion to demonstrate that any

treatment she ... received [was] the result of retaliation and/or

discrimination or that she has been subjected to a hostile racial

environment such as would entitle her to relief."            The district

court further found, however, that Dr. Langley was "entitled to

recover   compensation   for   her       work   as   continuing   education

coordinator from and after January 1990 inasmuch as the proof

showed that [JSU] failed to grant her the twenty-five percent

reduction set forth in her settlement agreement with [JSU] for

those services."3

     JSU contends on appeal that the district court lacked subject

     2
      Dr. Langley did not argue that jurisdiction over the motion
to enforce the settlement agreement resulted from the fact that
the breach of the settlement agreement constituted unlawful
discrimination in violation of Title VII. Instead, Dr. Langley
argued that because the case which the agreement settled was an
action arising under Title VII, the district court "retain[ed]
said [federal subject matter] jurisdiction to enforce the
settlement agreement."
     3
      The district court did not address jurisdiction over the
motion to enforce the settlement agreement in its opinion.

                                     3
matter jurisdiction over the action to enforce the settlement

agreement, and that even if the court had jurisdiction, the court

clearly erred in finding that JSU breached the terms and conditions

of the agreement.    In her cross-appeal, Dr. Langley contends that

the district court erred in failing to apply a "motivating factor"

proof methodology4 to her claims of discrimination and retaliation.

                                  II

                                  A

                  Breach of the Settlement Agreement

                    1. Subject Matter Jurisdiction

         JSU first contends that the district court lacked subject

matter jurisdiction over Dr. Langley's action to enforce the

settlement agreement.5      Citing Fairfax Countywide Citizens v.

Fairfax County, 571 F.2d 1299 (4th Cir.), cert. denied, 439 U.S.

1047, 99 S.Ct. 722, 58 L.Ed.2d 706 (1978), JSU argues that because

the district court failed to approve or incorporate the settlement

agreement into its order of dismissal, the court required some

independent ground upon which to base federal jurisdiction.      In

Fairfax, the district court dismissed a racial discrimination suit

brought under the Equal Protection Clause after the parties had


     4
      See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct.
1775, 104 L.Ed.2d 268 (1989).
     5
      The consolidation of Dr. Langley's two separate actions did
not confer subject matter jurisdiction over the action to enforce
the settlement agreement. Where two actions have been
consolidated, we must examine "each consolidated case separately
to determine the jurisdictional premise upon which each stands."
Kuehne & Nagel (AG & CO) v. Geosource, Inc., 874 F.2d 283, 287
(5th Cir.1989).

                                  4
entered into settlement agreements.          See id., 571 F.2d at 1301.

The district court neither approved nor incorporated the settlement

agreements into its dismissal orders.         See id.    Three years later,

plaintiffs moved the district court to vacate its dismissal orders

so that the court could enforce the settlement agreements.             See id.

at 1302.    The Fourth Circuit held that while "a district court has

the authority under Rule 60(b)(6) to vacate its prior dismissal

order and restore the case to its docket," a district court is not

empowered to enforce a settlement agreement "unless the agreement

had been approved and incorporated into an order of the court, or,

at the time the court is requested to enforce the agreement, there

exists     some   independent    ground   upon   which   to   base    federal

jurisdiction."       Id. at 1303;   see also McCall-Bey v. Franzen, 777

F.2d 1178, 1186-87 (7th Cir.1985) (adopting Fairfax rule) (holding

that "unless jurisdiction is retained [a] settlement agreement

requires an independent basis of federal jurisdiction in order to

be enforceable in federal rather than state court").               But see Aro

Corp. v. Allied Witan Co., 531 F.2d 1368, 1371 (6th Cir.) (finding

subject matter jurisdiction over a post-dismissal action to enforce

a settlement agreement, by virtue of a district court's "inherent

power to enforce settlement agreements entered into in settlement

of litigation pending before [it]"), cert. denied, 429 U.S. 862, 97

S.Ct. 165, 50 L.Ed.2d 140 (1976).

      A federal district court is a court of limited jurisdiction,

and the     burden    of   establishing   jurisdiction   is   on    the   party

claiming it.      See McNutt v. General Motors Acceptance Corp., 298


                                      5
U.S. 178, 182-83, 56 S.Ct. 780, 781-82, 80 L.Ed. 1135 (1936).          Dr.

Langley   argues    that   the   district   court   had    subject   matter

jurisdiction over the action to enforce the settlement agreement on

the following grounds:      (a) her motion to enforce the settlement

agreement is an action arising under Title VII;            and (b) federal

courts have the inherent power to enforce agreements settling

litigation pending before them.        Both grounds are insufficient to

support subject matter jurisdiction.

     Dr. Langley cites E.E.O.C. v. Safeway Stores, Inc., 714 F.2d

567 (5th Cir.1983), cert. denied, 467 U.S. 1204, 104 S.Ct. 2384, 81

L.Ed.2d 343 (1984), for the proposition that an action to enforce

an agreement settling a Title VII suit is an action arising under

federal law.       In Safeway, we held that "federal courts have

jurisdiction   over    suits     to   enforce   Title   VII   conciliation

agreements."   Id. at 571-72 (emphasis added).            We reasoned that

"[a]lthough Title VII does not explicitly provide the EEOC with the

authority to seek enforcement of conciliation agreements in federal

court, it would be antithetical to Congress' strong commitment to

the conciliatory process if there were no federal forum in the EEOC

could enforce such agreements."       Id. at 572.   We further noted that

Congress' commitment to the conciliatory process was evidenced by

its creation of the EEOC and establishment of an "administrative

structure whereby the agency "would have an opportunity to settle

disputes through conference, conciliation, and persuasion before

the aggrieved party was permitted to file a lawsuit.' "                Id.

(emphasis added).     In our case, Dr. Langley does not offer, and we


                                      6
cannot find, any indication that Congress has established an

administrative structure evidencing its intent to provide a federal

forum for private parties to enforce settlement agreements ending

discrimination      disputes   after       a    lawsuit    has        been   filed.

Consequently, our decision in Safeway is not on point.                   Moreover,

we have found no authority applying the holding in Safeway to

non-administrative settlements of Title VII suits.                    We therefore

reject   Dr.   Langley's    first   basis      for   showing     subject     matter

jurisdiction.

     Langley next argues that even if the action to enforce the

settlement agreement was not an action arising under Title VII,

subject matter jurisdiction nevertheless existed because federal

district   courts    have   "the    inherent     power    ...    to    enforce   an

agreement settling litigation pending before the court."                     In re

Corrugated Container Antitrust Litigation, 752 F.2d 137, 142 (5th

Cir.) (citing Massachusetts Casualty Ins. Co. v. Forman, 469 F.2d

259 (5th Cir.1972);     Cia Anon Venezolana de Navegacion v. Harris,

374 F.2d 33 (5th Cir.1967)), cert. denied, 473 U.S. 911, 105 S.Ct.

3536, 87 L.Ed.2d 660 (1985);        see Aro Corp., 531 F.2d at 1371.             In

Corrugated, the plaintiffs sought to enforce an agreement which had

settled litigation before the district court.                    The plaintiffs

brought the action to enforce the settlement agreement after the

prior suit had been dismissed.             Because the district court had

approved of and incorporated the terms of the settlement agreement

in its consent decree, we had no cause to decide the issue whether

a district court need have federal jurisdiction over an action to


                                       7
enforce a settlement agreement independent of the matter settled by

the   agreement,    where    the   agreement   was   neither   approved   nor

incorporated by the court.6         We are presented squarely with that

issue today.

          In deciding that issue, we initially note that Dr. Langley's

action to enforce the settlement agreement is tantamount to an

action for "breach of contract remediable under state but not

federal law, and therefore only in state court since the parties

are not of diverse citizenship."           McCall-Bey, 777 F.2d at 1185

(citing Fairfax, 571 F.2d at 1303).             We therefore must decide

whether to accept Dr. Langley's argument that a federal district

court has subject matter jurisdiction over a breach of contract

action "merely by virtue of having had jurisdiction over the case

that was settled."          Id.;   see also Fairfax, 571 F.2d at 1304

(referring to this ground for upholding federal jurisdiction as

"derivative" jurisdiction).         Our resolution of this question is

guided by the Seventh Circuit's persuasive reasoning in McCall-Bey,

where the court stated:

      6
      We therefore declined to take sides in the jurisdictional
debate spawned by Aro Corp. and Fairfax. See Corrugated, 752
F.2d at 142 ("It is unnecessary for us to approve the result
reached by the Fourth Circuit [Fairfax ], which may be contrary
to Fifth Circuit opinions concerning the inherent power of a
district court to enforce an agreement settling litigation
pending before the court."). Although the Supreme Court has yet
to resolve this inter-circuit conflict, it has decided recently
to review a decision adopting the Aro Corp. view. See Kokkenen
v. Guardian Life Ins. Co. of America, 993 F.2d 883 (9th Cir.1993)
(holding that a district court's inherent power summarily to
enforce a settlement agreement concerning an action before it,
confers subject matter jurisdiction to enforce a post-dismissal
action to enforce such an agreement), cert. granted, --- U.S. ---
-, 114 S.Ct. 341, 126 L.Ed.2d 306 (1993).

                                       8
     If we follow the ascent far enough, countless claims of right
     can be discovered to have their source or their operative
     limits in the provisions of a federal statute or in the
     Constitution itself with its circumambient restrictions upon
     legislative power. To set bounds to the pursuit, the courts
     have formulated the distinction between controversies that are
     basic and those that are collateral.      A dispute over the
     meaning of an agreement is "collateral" for this purpose when
     it is not the kind of dispute that is likely to require for
     its just resolution the special independence, experience, and
     perspective that federal courts may be thought to bring to the
     decision of certain cases. A dispute between residents of the
     same state over the meaning of their contract is not of that
     kind. Such disputes are traditionally, uncontroversially, and
     exclusively with the jurisdiction of state courts.

McCall-Bey, 777 F.2d at 1186 (citation and attribution omitted).

We   further    note   that   Dr.   Langley's   argument    in   favor   of

"derivative" jurisdiction knows no time limit.             As the Seventh

Circuit observed:

     If 20 years from now the plaintiff complains that the
     defendants have violated a term of the settlement agreement,
     the judge would, in the plaintiff's view have jurisdiction to
     entertain the complaint—and this regardless of whether the
     district judge intended to retain jurisdiction. No statute
     confers such a jurisdiction and we hesitate to use so formless
     a concept as inherent power to give the federal courts an
     indefinite jurisdiction over disputes in which the federal
     interest may be nonexistent.

Id. at 1187.7    For these reasons, we reject the view espoused by

the Sixth Circuit in Aro, in favor of the position taken by the

Fourth Circuit in Fairfax and by the Seventh Circuit in McCall-Bey.

Accordingly, we hold that once a court dismisses an action with

prejudice because of a settlement agreement, and the agreement is

neither approved of nor incorporated by the court in its decree or


     7
      We note that over two years passed between the time the
district court dismissed Dr. Langley's initial Title VII suit and
Dr. Langley filed her motion to enforce the settlement agreement.


                                     9
order and the court does not indicate any intention to retain

jurisdiction,   an    action    to   enforce    the      settlement    agreement

requires federal jurisdiction independent of the action that was

settled.

     Although we have speculated that Fairfax may be contrary to

our prior decisions in Massachusetts Casualty and Cia Anon, see

Corrugated, 752 F.2d at 142 & n. 9 (dicta), our reading of those

cases reveals no conflict with the rule we adopt today.                     For

example, in Massachusetts Casualty, the plaintiff sought to enforce

a settlement agreement entered into to end litigation then pending

before the district court.       In other words, unlike the case before

us today, the motion to enforce the settlement agreement was filed

before the district court dismissed the case.              We therefore had no

cause to consider the issue whether jurisdiction existed over the

settlement agreement when we held that "[a] trial court has the

power to summarily enforce a settlement agreement entered into by

litigants while the litigation is pending before it."                  Id., 469

F.2d at 260 (citing Cia Anon, 374 F.2d at 35).             Our prior decisions

in   Massachusetts        Casualty    and     Cia     Anon    are     therefore

distinguishable.     See Fairfax, 571 F.2d at 134 (stating that the

inherent   power     of   a   district      court   to    enforce     settlement

agreements, as set forth in cases such as Massachusetts Casualty

and Cia Anon, "presupposes [rather than confers] ... federal

jurisdiction over the case or controversy").              Accordingly, because

the district court lacked subject matter jurisdiction over the

settlement agreement, we vacate the district court's determination


                                      10
that JSU breached the agreement and dismiss Dr. Langley's suit to

enforce the agreement.

                             2. Clear Error

     JSU also contends that the district court clearly erred in

finding    that   JSU   breached   the      terms   and   conditions   of   the

settlement agreement.       Because we vacate the district court's

determination that JSU breached the agreement and dismiss Dr.

Langley's suit to enforce the agreement, we need not address

whether the district court's underlying findings of fact were

clearly erroneous.

                                       B

                            Proof Methodology

      In her cross-appeal, Dr. Langley contends that the record

contains direct evidence that racial animus motivated in part the

employment decisions affecting her.            "When a plaintiff presents

credible    direct   evidence   that       discriminatory    animus    in   part

motivated or was a substantial factor in the contested employment

action, the burden of proof shifts to the employer to establish by

a preponderance of the evidence that the same decision would have

been made regardless of the forbidden factor."                 Brown v. East

Mississippi Elec. Power Ass'n, 989 F.2d 858, 861 (5th Cir.1993)

(citing Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775,

104 L.Ed.2d 268 (1989)).     Langley argues that the district court's

failure to use the "motivating factor" proof methodology justifies

a remand.

     Our thorough review of the record reveals no direct evidence


                                    11
that racial animus motivated in part the employment decisions

affecting   Dr.   Langley.     At   most,    the   record   shows   that   Dr.

Langley's supervisors were race-conscious to the extent that some

felt uncomfortable with, and possibly even resented, Dr. Langley's

presence at JSU, an historically black institution.            For example,

Dr. Langley testified that Dr. Hall told her that "she doesn't see

why black students feel that they need to have white advisors" and

that "black people are overlooked at Jackson State to give white

faculty more rights."        Another white faculty member, Dr. Marie

Roos, testified that Dr. Hall had indicated to her that Dr. Hall

would prefer an all-black institution so there would be less

competition between blacks and whites. Although these comments are

indicative of race-consciousness, they do not constitute direct

evidence that discriminatory animus motivated in part any of the

decisions affecting Dr. Langley.           Cf. Young v. City of Houston,

Tex., 906 F.2d 177, 182 (5th Cir.1990) (holding that an employer's

use of the terms "white tokens" and "white faggots" did not

necessarily constitute direct evidence that racial animus motivated

in part an employment decision).            To shift the burden on the

employer to show by a preponderance of the evidence that it would

have made the same decision even without the forbidden factor, the

employee must show that "the employer actually relied on [the

forbidden factor] in making its decision."           Price Waterhouse, 490

U.S. at 250, 109 S.Ct. at 1791 (emphasis added).                Dr. Langley

failed to make this showing.              Because no direct evidence of

motivating racial animus existed, the district court properly


                                     12
refused to apply the "motivating factor" proof methodology to Dr.

Langley's claims.   We therefore reject Dr. Langley's argument and

affirm the district court's findings that she failed to prove

discrimination or retaliation

                                III

     For the foregoing reasons, we AFFIRM the district court's

findings that Langley failed to prove discrimination based upon her

race or retaliation for bringing a prior discrimination suit.

However, because of the lack of subject matter jurisdiction, we

VACATE the district court's determination that JSU breached the

settlement agreement, and DISMISS Dr. Langley's suit to enforce the

agreement.




                                13
