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

                                                                                   FILED
                                      No. 13-60156                         December 17, 2013
                                                                              Lyle W. Cayce
                                                                                   Clerk
GEORGIOS Y. LAZAROU, Ph.D.,

                                                 Plaintiff-Appellant
v.

MISSISSIPPI STATE UNIVERSITY; BOARD OF TRUSTEES,
INSTITUTIONS OF HIGHER LEARNING,

                                                 Defendants-Appellees




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 1:07-CV-60


Before KING, BENAVIDES, and DENNIS, Circuit Judge.
PER CURIAM:*
       Georgios Y. Lazarou (“Lazarou”), a native of Cyprus, brought suit
against Mississippi State University (“MSU”) and Institutions of Higher
Learning’s Board of Trustees (“IHL”), asserting national-origin discrimination
in violation of Title VII and in connection with his unsuccessful tenure
application in MSU’s Department of Electrical and Computer Engineering.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60156
The district court granted summary judgment in favor of MSU and IHL, and
Lazarou appealed. For the reasons that follow, we AFFIRM.
                              BACKGROUND
      Lazarou joined MSU as a tenure-track, assistant professor in the
university’s Electrical and Computer Engineering Department in August 2000,
working under a series of one-year employment contracts. As a tenure-track
faculty member, Lazarou underwent annual reviews, which included
discussion of his research record. Beginning with his first annual review, in
2001, and continuing until his last annual review, in 2004, prior to submitting
his tenure application, Lazarou’s supervisors repeatedly highlighted concerns
regarding his research, including with respect to external sources of funding
and his lack of scholarly publications. Lazarou’s performance in this area was
described by one evaluator as “not consistent with successful tenure and
promotion.”
      In 2005, Lazarou submitted a tenure application. A tenure application
is reviewed with respect to the applicant’s achievements in teaching, research,
and service.    To be eligible for tenure, the applicant must demonstrate
satisfactory performance in all three areas and excellence in at least one area.
In evaluating a tenure applicant’s performance in research, the reviewers
consider “dissemination of original research results in peer reviewed
publications and the receipt of funding through competitive grants offered by
outside organizations.” Once an applicant submits his or her application, the
tenure review process begins and consists of multiple levels of review,
including     submissions   by    external    evaluators    and     independent
recommendations by a department committee, the department chair, a college
committee, the college dean, the university provost, and the university
president.    The ultimate decision whether to grant tenure belongs to the
president.
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       If the president declines to grant tenure, the applicant may submit a
request to the provost to have his appeal reviewed by the University
Committee on Promotion and Tenure.          The Committee holds a hearing,
interviews the applicant and the parties involved in the tenure review process,
and issues a recommendation to the provost regarding whether the applicant
should have been granted tenure. The provost then undertakes his or her own
review    of   the   Committee’s    recommendation     and     makes    a   second
recommendation to the president. If the president declines to reverse his or
her earlier decision, the decision becomes final unless the applicant appeals to
IHL.     Upon a final decision to deny tenure, MSU typically provides the
unsuccessful candidate with a terminal, one-year employment contract.
       The department committee reviewed Lazarou’s application and
recommended denying him tenure.         Thereafter, the department head, the
college committee, the college dean, and the provost successively reviewed
Lazarou’s application and, at each stage, recommended denying him tenure.
At each stage, the reviewers determined that Lazarou had demonstrated
satisfactory achievement in teaching and service. However, the reviewers also
concluded that Lazarou had failed to demonstrate even satisfactory
achievement in research and that, consequently, he was not qualified for
tenure. The university president concurred in the denial of Lazarou’s tenure
application.
       After being informed of the president’s decision, Lazarou appealed to the
University Committee on Promotion and Tenure. The Committee conducted
an investigation and interviewed Lazarou and others involved in the tenure
review process.      The Committee declined to reverse the decision to deny
Lazarou tenure.      The provost, upon a second review of Lazarou’s tenure
application, again declined to recommend Lazarou for tenure, and the


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president agreed. Lazarou did not appeal to IHL. 1 Instead, he signed a one-
year, nonrenewable contract for the 2006–2007 school year. He resigned from
the university in January 2007.
      Lazarou subsequently filed a charge with the Equal Employment
Opportunity Commission (“the EEOC”), claiming that he had been denied
tenure because of his national origin. On receiving his right-to-sue letter from
the EEOC, he brought suit against MSU and IHL, claiming that he had been
unlawfully denied tenure and discriminated against in violation of Title VII.
MSU and IHL moved for summary judgment, which the district court granted,
and Lazarou filed a timely notice of appeal.
                           STANDARD OF REVIEW
      “We review a district court’s summary judgment de novo, applying the
same standard as the district court.” Tagore v. United States, No. 12-20214,
2013 WL 6008901, at *3 (5th Cir. Nov. 13, 2013). “Summary judgment is
warranted if, viewing all evidence in the light most favorable to the non-
moving party, the record demonstrates that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of
law.” Id.; see FED. R. CIV. P. 56. “A fact is material if it ‘might affect the
outcome of the suit under the governing law,’ and a dispute is genuine if ‘the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Tagore, 2013 WL 6008901, at *3 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
      “We construe all facts and inferences in the light most favorable to the
nonmoving party when reviewing grants of motions for summary judgment.”
Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012) (quoting



      1 Consequently, IHL did not participate at any stage in the review or denial of
Lazarou’s application and is therefore entitled to summary judgment.
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Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005)) (internal quotation marks
omitted).   “[A] party seeking summary judgment . . . bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). The burden then shifts to “the nonmoving party to go beyond
the pleadings and by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that
there is a genuine issue for trial.’” Id. at 324.
                                 DISCUSSION
                                         I.
      Under Title VII, it is unlawful “for an employer[] . . . to fail or refuse to
hire or 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, . . . or national origin.”
42 U.S.C. § 2000e-2(a)(1). The analytical framework for addressing a Title VII
claim depends on whether the plaintiff has presented direct or circumstantial
evidence of discrimination. See Jones v. Robinson Property Grp., L.P., 427 F.3d
987, 992 (5th Cir. 2005). “Direct evidence is evidence which, if believed, proves
the fact without inference or presumption.” Id. “In a Title VII context, direct
evidence includes any statement or document which shows on its face that an
improper criterion served as a basis—not necessarily the sole basis, but a
basis—for the adverse employment action.” Fabela v. Socorro Indep. Sch.
Dist., 329 F.3d 409, 415 (5th Cir. 2003), abrogated on other grounds by Gross
v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
      If an employee presents credible direct evidence that
      discriminatory animus at least in part motivated, or was a
      substantial factor in the adverse employment action, then it
      becomes the employer’s burden to prove by a preponderance of the
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       evidence that the same decision would have been made regardless
       of the discriminatory animus.
Jones, 427 F.3d at 992; see also Trans World Airlines, Inc. v. Thurston, 469
U.S. 111, 121 (1985) (“[T]he McDonnell Douglas test is inapplicable where the
plaintiff presents direct evidence of discrimination.”).
       “Where[] . . . the plaintiff does not produce any direct evidence of
discrimination, we apply the well-known McDonnell Douglas burden-shifting
framework as modified and restated by this court.”                        Burrell v. Dr.
Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 411 (5th Cir. 2007); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).                        Under that
framework,
       the plaintiff must first demonstrate a prima facie case of
       discrimination; the defendant then must articulate a legitimate,
       non-discriminatory reason for its [adverse] decision . . . ; and, if the
       defendant meets its burden of production, the plaintiff must then
       offer sufficient evidence to create a genuine issue of material fact
       that either (1) the employer’s reason is a pretext or (2) that the
       employer’s reason, while true, is only one of the reasons for its
       conduct, and another “motivating factor” is the plaintiff’s protected
       characteristic.
Burrell, 482 F.3d at 411-12. 2
       “To establish a prima facie case in the context of a denial of tenure, the
plaintiff must show that: (1) he belongs to a protected group, (2) he was
qualified for tenure, and (3) he was denied tenure in circumstances permitting
an [inference] of discrimination.” Tanik v. S. Methodist Univ., 116 F.3d 775,
775-76 (5th Cir. 1997). “Other circuits have recognized that tenure decisions


       2  Lazarou asserts that the McDonnell Douglas burden-shifting framework is
inapplicable in mixed-motive cases. Mixed-motive cases are governed by 42 U.S.C. § 2000e-
2(m). This circuit has adopted a “modified McDonnell Douglas approach” in mixed-motive
cases, incorporating § 2000e-2(m) into McDonnell Douglas’s third step, as accurately recited
in Burrell. See Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 (5th Cir. 2005) (internal
quotation marks omitted). Lazarou’s argument to the contrary is therefore without merit.
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in colleges and universities involve considerations that set them apart from
other kinds of employment decisions.” Id. at 776 (citing Kumar v. Univ. of
Mass., 774 F.2d 1, 11 (1st Cir.1985); Zahorik v. Cornell Univ., 729 F.2d 85, 92
(2d Cir.1984)).    “Those factors are: (1) tenure contracts require unusual
commitments as to time and collegial relationships, (2) academic tenure
decisions are often non-competitive, (3) tenure decisions are usually highly
decentralized, (4) the number of factors considered in tenure decisions is quite
extensive, and (5) tenure decisions are a source of unusually great
disagreement.” Id. (citing Zahorik, 729 F.2d at 92). “Tenure decisions are not,
however, exempt from judicial scrutiny under Title VII.” Id. “To prove a prima
facie case, a plaintiff may be able to show ‘departures from procedural
regularity’, ‘conventional evidence of bias on the part of individuals involved’,
or that the plaintiff is found to be qualified for tenure by ‘some significant
portion of the departmental faculty, referrants or other scholars in the
particular field’.” Id. (quoting Zahorik, 729 F.2d at 93-94).
       Once the plaintiff has met his burden of demonstrating a prima facie
case of discrimination, and if the employer satisfies its burden of producing a
legitimate, non-discriminatory reason for the adverse decision, “then the
presumption raised by the plaintiff’s prima facie case essentially disappears,
and the plaintiff is left with the ultimate burden, which has never left him:
that of proving that the defendant intentionally discriminated against him.”
Id.
                                       II.
       We first consider whether Lazarou has presented direct evidence of
discrimination. During his deposition, Lazarou recalled a conversation he had
had with James Harden (“Harden”), the head of Lazarou’s department,
regarding a potential faculty member.          According to Lazarou, Harden,
allegedly in the context of criticizing Lazarou’s ability and willingness to work
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with others in the department, suggested that “maybe . . . [Lazarou] ha[d]
character issues because of [his] background.” 3
      In Krystek v. University of Southern Mississippi, which also involved an
unsuccessful tenure applicant asserting discrimination in violation of Title VII,
we explained that
      in order for comments in the workplace to provide sufficient
      evidence of discrimination, they must be “1) related [to the
      protected class of persons of which the plaintiff is a member]; 2)
      proximate in time to the terminations; 3) made by an individual
      with authority over the employment decision at issue; and 4)
      related to the employment decision at issue.”
164 F.3d 251, 256 (5th Cir. 1999) (alteration in original) (quoting Brown v. CSC
Logic, Inc., 82 F.3d 651, 655 (5th Cir. 1996)). The Krystek court concluded that
the interim dean’s alleged comment to the plaintiff—“There are different
standards for males and females”—was not direct evidence of gender
discrimination because there was no dispute that the alleged comment was
made two years prior to and in a context unrelated to the plaintiff’s tenure
application. See id. Similarly, it is undisputed that Harden’s alleged comment
was made at least ten months in advance of Lazarou’s tenure application.
Further, the alleged comment was made in the context of Lazarou declining to
offer feedback on a potential faculty member.                Finally, the comment—
regarding Lazarou’s “character issues because of [his] background”—is too
ambiguous. We cannot say whether it related to Lazarou’s national origin.
Compare Jones, 427 F.3d at 992 (“Direct evidence is evidence which, if believed,
proves the fact without inference or presumption.”).            We therefore conclude
that Lazarou has not presented direct evidence of discrimination. See Krystek,
164 F.3d at 256.



      3   When deposed, Harden denied making the statement or any words to that effect.
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                                      III.
      Because Lazarou has failed to produce any direct evidence of
discrimination, he must satisfy the McDonnell Douglas burden-shifting
framework instead. See Burrell, 482 F.3d at 411. Our first step is to consider
whether Lazarou has demonstrated a prima facie case of discrimination. MSU
argues that he was not qualified for tenure, a necessary component of the
prima facie case in the tenure-application context. See Tanik, 116 F.3d at 776.
      When he applied for tenure, Lazarou had a satisfactory record in
teaching and service; however, the reviewers unanimously agreed that he had
failed to demonstrate satisfactory achievement in the area of research because
of a dearth of scholarly publications. For example, when Lazarou submitted
his application, he had published only two refereed journal articles (a third was
scheduled for publication at the time). Both articles were co-authored, and one
was published in a journal considered “low tier” because it utilized a five-day
submission-to-publication    timeframe       and   required   a   publication    fee.
Moreover, Lazarou’s annual reviews included repeated notations concerning
the need to buttress his record with respect to publishing. Nevertheless, for
his first four-and-a-half years at the university, Lazarou had no refereed
publications.
      The reviewers also raised concerns related to the accuracy of Lazarou’s
research.   Lazarou’s application listed two awards whose amounts were
inflated, a large proposal that had not in fact been awarded, and a submitted
proposal for which the university had no records. The application also listed a
$450,000 National Science Foundation grant. However, the university later
determined that Lazarou had not been listed as a principal investigator on the
grant application, had not been involved in obtaining the grant, and had not
been identified on the grant application in any capacity. Instead, Lazarou had
been substituted, after the grant had been awarded and funding had been
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received, as the principal investigator because the grant recipient had taken a
sabbatical. Although Lazarou acknowledged this in his application, he also
answered “100%” in response to a question asking him to list the percentage
for which he was responsible for the grant.              Under these circumstances,
Lazarou has not satisfied his burden of demonstrating that he was qualified
for tenure. Compare Krystek, 164 F.3d at 257 (“Krystek argues that he was
qualified for tenure, but the evidence clearly indicates that Krystek failed to
meet an established [university] tenure requirement: publishing scholarly
work in ‘reputable journals, scholarly presses, and publishing houses that
accept works only after rigorous professional review.’”).
      Nor has Lazarou shown that he was treated differently from a similarly
situated tenure applicant.        Lazarou asserts that J.W. Bruce (“Bruce”), an
American professor who received tenure one year prior to the submission of
Lazarou’s tenure application, was given more favorable treatment. 4 However,
Lazarou has failed to demonstrate a genuine issue of material fact that he was
as or better qualified than Bruce. Focusing on research—the area in which
Lazarou failed to achieve satisfactory performance—Bruce’s record included
eight peer-reviewed, refereed journal publications and twelve refereed,
published conference papers. By contrast, Lazarou’s record included only two
peer-reviewed, refereed journal publications and ten refereed conference
papers. Although Lazarou asserts that his qualifications vis-à-vis Bruce are
genuinely contested, his only record support is a chart, prepared by Lazarou



      4 Lazarou also claims that he was as or better qualified than seven other American
professors who had been granted tenure: Lori Bruce, Patrick Donohue, Randy Follet, Bryant
Jones, Roger King, Robert J. Moorhead, and Bob Reese. Nevertheless, Lazarou fails to
support his arguments with respect to Lori Bruce, Jones, or King and his remaining
arguments involve irrelevant comparisons or conclusory assertions, insufficient to create a
genuine issue of material fact on this point.

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himself, purportedly comparing Lazarou with Bruce. The chart states that
Bruce had only two peer-reviewed, refereed journal publications, even though
Bruce’s CV lists eight. Additionally, the chart conclusorily suggests that one
of Bruce’s publications should not have been counted as “significant” because
it was based on “very low quality research work” and published in a journal
with “a very high acceptance rate” according to Lazarou. Lastly, the chart
purports to criticize those who reviewed Bruce’s tenure application because
they supposedly credited him with research he conducted before joining the
faculty at MSU. By contrast, Lazarou’s reviewers faulted him for having
conducted no research until the year he submitted his tenure application. No
reasonable jury could conclude, based on this chart, that Lazarou and Bruce
were similarly situated.       Accordingly, because Lazarou has failed to
demonstrate that he was treated differently from a similarly situated tenure
applicant, he has failed to carry his burden with respect to the prima facie case.
Cf. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001)
(noting that “the bar is set high for . . . evidence [of the plaintiff’s superior
qualification] because differences in qualifications are generally not probative
evidence of discrimination unless those disparities are ‘of such weight and
significance that no reasonable person, in the exercise of impartial judgment,
could have chosen the candidate selected over the plaintiff for the job in
question.’” (quoting Deines v. Tex. Dep’t of Prot. & Regulatory Servs., 164 F.3d
277, 280-81 (5th Cir. 1999))); compare Krystek, 164 F.3d at 257 (“[T]here is no
evidence that Krystek was treated differently from female tenure-track
assistant professors.    Krystek cannot point to a single similarly situated
assistant professor who was awarded tenure despite not publishing scholarly
work.”).
      Finally, Lazarou argues that when a university avoids its own
procedures, thereby failing to investigate complaints of discrimination in the
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tenure process, that is itself evidence of discrimination.              MSU prohibits
discrimination on a number of grounds, including race, ethnicity, and national
origin. The university’s nondiscrimination policy further provides that “[a]ny
administrator . . . who knows of, or receives, a complaint of discrimination . . .
must promptly report the information or complaint to [the Office of Human
Resources Management].”
      Lazarou, through an attorney, sent a letter to the college dean. The
letter appears to have been sent after the department committee and
department chair had reviewed his tenure application but before anyone else
had done so. In the letter, Lazarou asserts that the department chair’s decision
not to recommend him for tenure was discriminatory and made on the basis of
Lazarou’s “ethnic heritage.” 5
       Lazarou asserts that, despite his letter, the college dean never reported
his claims to the Office of Human Resources Management and argues that his
complaints were otherwise never investigated by the university. We disagree.
Lazarou ignores an important caveat to the university’s nondiscrimination
policy.    Under “Application,” the university’s nondiscrimination policy
expressly provides that “[t]his policy is not intended to address differences in
opinion regarding the validity of employment decisions such as . . . promotion
and tenure decisions.” Accordingly, the policy that Lazarou contends went
unfollowed exempts from its ambit tenure decisions.
      Lazarou further ignores that the university did investigate—and found
meritless—his allegations of discrimination when he appealed the denial of
tenure to the University Committee on Tenure and Promotion, the committee



      5  Additionally, Lazarou submitted his “objections . . . to actions taken by MSU, its
employees[,] and/or agents.” However, it is not clear to whom Lazarou submitted these
objections. Finally, Lazarou’s mentor, Joseph Picone, sent an email to the university
president vaguely alleging that Lazarou had been discriminated against.
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independently charged with reviewing whether a tenure decision was
“prejudiced, arbitrary, or capricious.”    The committee reviewed all of the
tenure-application materials and interviewed the people involved, including
the reviewers and Lazarou.      Moreover, as part of this process, Lazarou
submitted a twenty-eight-page letter and participated in the committee’s
hearing.   Nonetheless, the committee unanimously determined that the
decision to deny Lazarou tenure was not prejudicial, arbitrary, or capricious
and therefore recommended to the provost that the decision be affirmed. The
provost’s recommendation remained unchanged, and the president denied
Lazarou’s appeal.
      Lazarou has therefore failed to point to any record evidence that the
university did not investigate his allegations of discrimination or otherwise
failed to abide by its own nondiscrimination policies. Accordingly, we conclude
that Lazarou has failed to carry his burden of demonstrating a genuine issue
of material fact regarding whether he was qualified for tenure, a necessary
component of his prima facie case of discrimination under the McDonnell
Douglas burden-shifting framework. See Tanik, 116 F.3d at 776. Under these
circumstances, MSU was entitled to summary judgment.
                               CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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