REVISED, May 8, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-50526

JAMES A. ROSS,

Plaintiff-Appellant,

VERSUS

UNIVERSITY OF TEXAS AT SAN ANTONIO; BOARD OF REGENTS

OF THE UNIVERSITY OF TEXAS SYSTEM,

Defendants-Appellees.

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JAMES A. ROSS,

Plaintiff-Appellant,

VERSUS

RUSSEL BRINER; JAMES GAERTNER,

Defendants-Appellees.

Appeal from the United States District Court

For the Western District of Texas

April 21, 1998

Before REAVLEY, DeMOSS, and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:

James Ross appeals from the district court’s grant of summary

judgment in favor of the defendants in this age discrimination1 Ross also alleged (1) that the University’s compensation

practices have a disparate impact on older workers, and (2)

retaliation in violation of Title VII. Ross’ retaliation claim was

dismissed and Ross has not challenged the district court’s

dismissal in his brief on appeal. Similarly, Ross has not

articulated any cogent argument with respect to his disparate

impact claim. Those claims are therefore deemed abandoned and form

no part of the Court’s discu ssion. S ee F ED

. R. A PP

. P. 28(a)(5);

MacArthur v. University of Tex. Health Ctr.

, 45 F.3d 890, 896 (5th

Cir. 1995); Yohey v. Collins , 985 F.2d 222, 225 (5th Cir. 1993).

2 suit.

BACKGROUND

James Ross has been an Associate Professor of Accounting and

Informational Systems in the Business School of the University of

Texas at San Antonio since 1975. Ross is 55 years of age. Ross

alleges that he is being paid less than similarly situated younger

workers because of his age. Ross filed two law suits in federal

court. In the first action, Ross sued the University and the Board

of Regents, alleging that he was denied certain pay increases and

that he was paid less for performing the same or similar work.

Ross’ claims in this action were brought pursuant to the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA).

In the second action, Ross sued his immediate supervisors, Division

Director Russel Brin er and Dean James Gaertner. Ross’ action

against the individual supervisor s alleged that ill-will and

discrimination by these state actors arbitrarily affected his

compensation, thereby deprivi ng Ross of his right to substantive

due process. 1

The University and the Board of Regents moved for summary2 But see O’Connor v. Consolidated Coin Caterers Corp. , 116

S. Ct. 1307, 1309-10 (1996) (leaving the question of the

applicability of the McDonnell Douglas paradigm in ADEA cases

3 judgment on the ADEA claims. Thereafter, Ross moved to consolidate

the two cases. The district court granted Ross’ motion to

consolidate, then granted the ADEA defendants’ motion for summary

judgment, purporti ng to finally dispose of all claims in both

cases. Ross appealed.

On appeal, Ross claims that the district court’s grant of

summary judgment with respect to his ADEA claims is in error

because he submitted sufficient evidence to support a reasonable

inference of age discrimination. Ross also maintains that neither

the defendant’s motion for summar y judgment nor the district

court’s order address his claim that younger employees were paid on

a higher scale.

Ross claims the district court’s grant of summary judgment is

in error with respect to the Due Process claims because defendants

Briner and Gaertner did not move for summary judgment. Thus, the

district court’s entry of summary judgment was done sua sponte, and

without reasonable notice to Ross. S ee F ED

. R. C IV

. P. 56(c);

Millar v. Houghton , 115 F.3d 348, 350 (5th Cir. 1997).

DISCUSSION

I.

The McDonnell Douglas burden shifting paradigm applies to age

discrimination suits. R hodes v. Guiberson Oil Tools

, 75 F.3d 989,

992 (5th Cir. 1996). 2 To survive summary judgment, the plaintiffopen); Rhodes , 75 F.3d at 1003-06 (DeMoss, J., concurring in part

and dissenting in part) (suggesting that there are important

differences between the ADEA and Title VII that might support a different analysis).

3 O’Connor instructs that there must be some “logical

connection between each element of the prima facie case and the

illegal discrimination for which it establishes a legally

mandatory, rebuttable presumption.” O’Connor , 116 S. Ct. at 1310

(internal quotations omitted). For that reason, the formulation of

the prima facie case necessarily varies depending upon the type of

decision challenged. Using that principle, Ross should have been

required to produce some evidence that he: (1) is within the

protected age group; (2) suffered an adverse employment action; and

that (3) the challenged employmen t decisions were motivated by

unlawful age discrimination.

4 must init ially demonstrate a prima facie case of age

discrimination. Id . A prima facie case generally requires proof

that the plaintiff is within the protected class, that he suffered

an ad verse employment decision, and some evidence that the

employment decision was motivated by unlawful age discrimination.

E.g.

, Armendariz v. Pinkerton Tobacco , 58 F.3d 144, 149 (5th Cir.

1995); Bodenheimer v. PPG Indus., Inc. , 5 F.3d 955, 957 (5th Cir.

1993). 3 Once shown, a plaintiff’s prima facie case c reates an

inference of age discrimination, which the employer is required to

rebut with a legitimate non-discriminatory reason f or the

employment decision. Rhodes , 75 F.3d at 992-93. If the employer

successfully articulates a legitimate non-discriminatory reason,

the in ference of discrimination vanishes, and plaintiff is left

with the ulti mate burden of presenting evidence from which a

reasonable trier of fact could infer age discrimination. I d

. at

993. To avoid summary judgment, an age discrimination plaintiff

must present evidence that both (1) rebuts the employer’s non-5

discriminatory reason, and (2) creates an inference that age was a

determinative factor in the challenged employment decision. I d

. at

994.

The district court held that Ross failed to establish a prima

facie case, failed to rebut the employer’s legi timate nondiscriminatory reasons for the disparity in pay, and failed to

create an inference that any pay disparity was the result of

intentional age discrimination. We affirm, but for reasons that

are different from those articulated by the district court.

II.

Ross offers the following evidence of discrimination: (1) his

own affidavit, with attached charts, (2) the deposition testimony

of defendants Briner and Gaertner; and (3) the statement of an

expert statistician. Neither the deposition testimony of Briner

and Gaertner nor the expert’s statement support any inference of

age discrimination. Taken together, the deposition testimony of

Briner and Gaertner merely establish that an equity adjustment may

have been given to another professor who is only one year younger

than Ross. The University’s award of an equity increase to an

employee within the protected class and only one year younger than

Ross is insufficient in this case to create a reasonable inference

of age discrimination. The expert’s statement offers a conclusory

opinion on the ultimate issue of discrimination, stating that there

has been a “systematic effort, extending over a number of years,

artificially to depress Professor Ross’ salary in comparison to6

those of younger faculty hired more recently.” That statement is

expressly based upon incomple te information and does not contain

any statistical analysis that would be competent summary judgment

testimony from this expert. S ee F ED

. R. E VID

. 7 03 (sources

underlying an expert’s opinion must be of the type relied upon by

experts in the field); First United Fin. Corp. v. United States

Fidelity & Guar. Co.

, 96 F.3d 135, 136 (5th Cir. 1996) (expert

opinion exceeding scope of expert’s expertise properly excluded).

Ross relies heavily, as he must, upon his own affidavit and

two appended charts. Chart 1 reflects the ages, salaries, and

evaluation ratings for each of th e associate professors in Ross’

division. Chart 2 reflects the ages, salaries, and hire dates of

each of several assistant professors in undisclosed divisions. The

charts reflect that (1) Ross is paid less than seven assistant

professors hired since 1991; (2) Ross is older than all but two of

the nine associate professors and older than all of the assistant

professors; (3) Ross earns less than all of the associate or

assistant professors; and (4) the three oldest associate professors

in the division earn the lowest salaries.

The University responds that the two professors who are older

than Ross also make more money than he does. The University also

responds that, although Ross has correctly identi f ied several

recently hired assistant professors making more than him, there is

no evidence demonstrating which department those prof essors were

hired into or what factors set their salaries.

Ross admits that the higher salaries earned by the recent7

hir es are explained by the University’s practice of determining

entry-level pay according to discipline, market demand and degree.

Thus, Ross does not dispute that market forces, rather than age

discrimination, are the primary cause of any disparate compensation

between more recent hires and longstanding professors. We conclude

that the charts in this case are insufficient to create a

reasonable inference of age discrimination, because any disparities

they reflect are caused by market factors not related to the age of

the professors who make up the control group.

Ross maintains that the University conducted an equity study

to determine which lo ngstanding professors were entitled to an

equity increase to make up for pay disparity caused by market

forces. Although that study identified Ross as a candidate for an

equity increase, none was awarded. Ross thus claims that the

University’s failure to give him an equity adjust ment creates an

inference of age discrimination. But Ross admits that equity

adjustments were in fact awarded to four other as sociate

professors, all of whom were within the protected age group. The

University’s willingness to make equity increases to other

longstanding professors within the protected age group tends to

negate, rather than support, an inference of discrimination.

III.

The University maintains that Ross’ lower pay is explained by

poor performance appraisa ls and poor performance caused in large

part by his time and energy commitment to his second occupation as8

a p racticing lawyer. The University offered evidence that Ross

spends forty to fifty hours per week in his law office, from which

he earned more than $100,000 in the year before this suit. The

Uni versity maintains that Ross is rarely available to students

except by phone, and that he is rarely on campus. In addition, the

University maintains that the caliber of his professional writings

is unacceptable.

Ross disputes the employer’s legitimate non-discriminatory

reason, but fails to offer competent rebuttal evidenc e. For

example, Ross claims that younger faculty keep comparable hours on

campus and still receive merit increases. Ross claims that younger

faculty members publish comparable research and still receive merit

increases. Ross fails, however, to refer the Court to any

particularized evidence to support his subjective view of the

facts. S ee Nichols v. Loral Vought Sys. Corp.

, 81 F.3d 38, 42 (5th

Cir. 1996) (plaintiff’s generalized statements about relative

qualifications or the treatment of similarly situated employees is

insufficient to support an inference of discrimination).

Ross also argu es that the performance appraisals themselves

are unreliable because they are the result of unlawful age animus.

Ross suppo rts that assertion with the statement of the expert

witness and his own belief. Such evidence is ineffective to rebut

the employer’s fact-based judgment that Ross’ significant

commitment to his law practice created a divided loyalty which

compromis ed his effectiveness at the University. S ee Pinkerton

Tobacco , 58 F.3d at 152; Little v. Republic Reining Co. , 924 F.2d9

93, 94 (5th Cir. 1991); see also Waggoner v. City of Garland , 987

F.2d 1160, 1165 (5th Cir. 1993) (“The ADEA was not intended to be

a vehicle for judicial second-guessing of business decisions, nor

was it intended to transform the courts into personnel managers”)

(internal quotations omitted). Thus, Ross failed to submit

competent su mmary judgment evidence sufficient to rebut his

employer’s non-discriminatory explanation for his lower pay.

In the final analysis, Ross’ evidence shows no more than that

he was the third oldest and lowest paid professor in his division,

a fact which is adequately explained by the employer’s legitimate

non-discriminatory re ason. We conclude that Ross’ evidence is

insuf ficient to support an inference of age discrimination. For

that reason, summary judgment was appropriately granted with

respect to Ross’ claims of discrimination in violation of the ADEA.

IV.

With respect to Ross’ Due Process claims against his

individual supervisors, Ross cla ims that the district court

inappropriately entered summary judgment in favor of the defendants

s ua sponte, and without providing Ross adequate notice that

judgment would be entered.

The district court is empowered to enter summary judgment sua

sponte, provided the parties are provided with reasonable notice

and an opportunity to present argument opposing the judgment. As

we stated in Millar v. Houghton , 115 F.3d 348 (5th Cir. 1997):

Under Fed . R. Civ. P. 56(c), a party must be

served with a motion for summary judgment at least10 10 days before a cour t grants the motion against

him. Similarly, a party must be given at least 10

days notice before a court grants summary judgment

su a sponte . This requirement places a party on

notice that he is in jeopardy of having his case

dismissed and affords him the o pportunity to put

forth evidence to show precisely how he intends to

prove his case at trial.

115 F.3d at 350 (footnotes omitted). Despite the strictness of

this rule, our Court has recognized that the district court’s

failure to provide notice may be harmless error. N owlin v.

Resolution Trust Corp. , 33 F.3d 498, 504 (5th Cir. 1994). Nowlin

held that error arising from the district court’s sua sponte grant

of summary judgment may be harmless when the “nonmovant has no

additional evidence or if all o f the nonmovant's additional

evidence is reviewed by the appellate court and none of the

evidence presents a genuine issue of material fact." Id

.

In this case, Ross’ allegation that Briner’s and Gaertner’s

compensation practices deprived him of Due Process does not state

a cogni zable constitutional claim. D orsett v. Board of Trustees

for State Colleges & Univs.

, 940 F.2d 121, 123 (5th Cir. 1991)

(holding that complaints challenging “teaching assignments, pay

increases, administrative matters, and departmental procedures” do

not rise to the level of a constitutional deprivation). Similarly,

and by analogy to our Title VII precedent, Ross’ allegation that he

was less favorably reviewed does not involve an ultimate employment

decision that could rise to the l evel of a constitutional

deprivation. M

attern v. Eastman Kodak Co.

, 104 F.3d 702, 708 (5th

Cir.), cert. denied , 118 S. Ct. 336 (1997). There is, therefore,

no additional evidence that Ross could offer that would justify11

relief as to his claims that his supervisors violated his right to

Due Process of law. That being the case, the district court’s sua

sponte entry of summary judgment is harmless error.

CONCLUSION

For the foregoing reasons, the district court’s grant of

summary judgment in favor of defendants is AFFIRMED.