IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-50764

 

BETTY TRAVIS,

Plaintiff-Appellee,

versus

THE BOARD OF REGENTS OF THE UNIVERSITY

OF TEXAS SYSTEM; UNIVERSITY OF TEXAS,

at San Antonio,

Defendants-Appellants.

 

Appeal from the United States District Court

for the Western District of Texas

 

September 8, 1997

Before POLITZ, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit

Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Betty Travis prevailed in a jury trial against her employer,

the University of Texas at San Antonio and the Board of Regents of

the University of Texas System. After reviewing the record, we

conclude that as a matter of law Travis did not prove a violation

of Title VII by a preponderance of the evidence. Thus, we agree

with the university and the regents that the lower court should

have entered judgment against Travis.
2

I.

The University of Texas at San Antonio hired Betty Travis on

a tenure track as an assistant professor of mathematics in 1980.

The university awarded her tenure and promoted her to associate

professor in 1985. Her specialty is mathematics education.

During the 1993-1994 academic year, she applied for promotion

to full professor. The university puts promotion applications

through several tiers of reviews and recommendations. An

applicant’s file, which includes teaching evaluations,

publications, letters of recommendation, evidence of service to the

university, and so forth, moves from the applicant’s division to

the applicant’s college to the provost to the president and

ultimately to the board of regents. Each stage involves an

independent review. The president’s decision to promote or not to

promote — a decision that the board of regents virtually always

adopts — comes in light of the recommendations from the lower

levels, but is not dictated by them.

Travis received favorable recommendations from a committee of

the Division of Mathematics and Statistics, from the division’s

director, from a committee of the College of Sciences and

Engineering, and from the dean of the college. But the provost,

Raymond T. Garza, recommended against promotion. At trial, Garza

explained that although Travis’s record in teaching and service was

excellent, her research was meager and was not published in the

better academic journals. He noticed that reviewers on the

division and college levels had failed to make detailed comments on
3

her publications and concluded that they had not scrutinized them

carefully. Although the dean of the college praised Travis for her

teaching skills and her success in landing grants for the

university, his report indicated that Travis’s research was only

“marginally adequate.” After investigating Travis’s publications,

Garza concluded that only one co-authored article had appeared in

a “premier” journal and that she had placed only three articles in

what he called “category 2" journals. She had also published two

chapters in books and three pieces in “regional journals,” but in

Garza’s view those, along with her many conference presentations

and invited talks, were of marginal scholarly significance. Garza

decided that, compared to other faculty members applying for status

as full professor, Travis had not yet made a sufficient

contribution to scholarship in her field. The university’s

president, Samuel Kirkpatrick, concurred in Garza’s analysis.

Travis received notification in March of 1994 that her application

for promotion had been denied.

Travis immediately scheduled a meeting with Provost Garza in

early April to discuss the reasons for the denial. Garza explained

that in order to earn a promotion, her research would need to be

more substantial. He indicated that, in combination with her

outstanding teaching and service, she was very close to meeting the

university’s expectations for a full professor. Several weeks

later, Travis told Garza that a journal had expressed interest in

one of her papers, and Garza promised to bring that fact to the

attention of the president, although he did not know whether it was
4

too late to reverse the denial. The president informed Travis by

letter that if she had additional material to include in her file

she would have to submit another promotion application in the 1994-

1995 academic year.

On May 11, 1994, Travis filed a charge of discrimination with

the Equal Employment Opportunity Commission. She amended her

charge on August 5 to add an allegation of unequal pay after

learning that Jerry Keating, a male colleague hired in 1981, had

been appointed Acting Division Director and earned $12,000 more

than she did. On September 24, she filed this lawsuit, which was

removed to federal court. The petition alleged causes of action

against the university and the board of regents and also against

Garza and Kirkpatrick in their individual capacities. Travis

alleged that the university had breached a contract and violated

the Fair Labor Standards Act and the Texas Equal Rights Amendment

by failing to honor a memorandum in which it notified Travis of her

salary as Interim Associate Dean. According to the university, a

clerical error caused the memorandum to include the salary of

Keating, who preceded Travis in the associate deanship, rather than

Travis’s salary, which was nearly $12,000 less. Travis also

alleged that Garza and Kirkpatrick violated the First Amendment by

retaliating against her for positions she took in the faculty

senate.

As a result of this suit, the university investigated Travis’s

salary and discovered that a grant from the Office of Naval

Research included a salary supplement that seemed to violate OMB
5

guidelines. Richard Dawson, the university’s director of internal

audit, concluded that OMB Circular A-21 prohibited government grant

money from going toward salary supplements above a faculty member’s

base salary. Although the university had approved the grant that

included Travis’s supplement, there was no evidence that university

officials were aware of any potential violation prior to the audit.

Once he learned about the violation, Kirkpatrick was concerned

enough to order an audit of all salary supplements at the

university. This audit revealed that an untenured faculty member

was also receiving a salary supplement that exceeded her base

salary. The university terminated both supplements in an effort to

comply with federal regulations.

Travis applied again for full-professor status during the

1994-1995 academic year. The only significant change was the

acceptance of the article she had mentioned to Provost Garza after

the first denial. She also had a new article under submission,

three new grants, and talks at two national conferences. She got

the same result: the lower levels recommended promotion, but Garza

recommended denying the application, and, in spite of Travis’s

lawsuit, Kirkpatrick followed that recommendation. Garza based his

recommendation on the fact that Travis’s recently accepted article

was to appear in a journal based in India with a circulation of

only about 300. Without any significant new research, he was

unwilling to reach a different result in 1994-1995 than he had in

1993-1994.
6

Travis had served as assistant director of her division since

1989. But a few weeks after accepting the post of division

director in January of 1995, Don Allen decided that the position of

assistant division director was no longer necessary. The

university eliminated the position of assistant division director

in February of 1995, although it paid Travis her administrative

supplement through the end of the academic year.

In an April 10, 1995, amended complaint, Travis sought damages

for the removal of her salary supplement and her termination as

assistant division director. These actions, Travis alleged, along

with the denial of her 1994-1995 application for a promotion, were

retaliation for her 1994 EEOC complaint and lawsuit.

The parties agreed to trial before a magistrate judge. After

five days of trial, the jury found that the university’s denial of

Travis’s promotion was sexually discriminatory and that the

university had retaliated against her for filing a discrimination

suit. It also found by special interrogatory that Garza and

Kirkpatrick did not violate her First Amendment rights. No other

theories of recovery went before the jury. The court ordered the

regents to promote Travis as of September 1, 1994, and to pay backand front-pay for the failure to promote, for the termination as

assistant division director, and for the failure to pay

supplemental grant salary. It also granted Travis’s request in

full for $91,088.75 in attorneys’ fees. The university and the

regents appeal the court’s denial of their motion for judgment as
 

1 The defendants have also appealed evidentiary rulings and

the imposition of attorneys’ fees. We have no occasion to consider

those matters.

7

a matter of law on both the sex-discrimination claim and the

retaliation claims.1

II.

We review de novo the lower court’s ruling on a motion for

judgment as a matter of law under Fed. R. Civ. P. 50(a). Omnitech

Int’l, Inc. v. Clorox Co., 11 F.3d 1316, 1322-23 (5th Cir.), cert.

denied, 513 U.S. 815, 115 S. Ct. 71, 130 L. Ed. 2d 26 (1994). A

court should grant a Rule 50(a) motion not only when the non-movant

presents no evidence, but also when there is not a sufficient

“conflict in substantial evidence to create a jury question.”

Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 804 (5th Cir. 1997)

(quoting Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir. 1969)

(en banc)).

Travis’s sex-discrimination and retaliation theories are

subject to the burden-shifting analysis expounded in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d

668 (1973), Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), and St. Mary’s

Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d

407 (1993). But we need not parse the evidence into discrete

segments corresponding to a prima facie case, an articulation of a

legitimate, nondiscriminatory reason for the employer’s decision,

and a showing of pretext. “When a case has been fully tried on the

merits, the adequacy of a party’s showing at any particular stage
8

of the McDonnell Douglas ritual is unimportant.” Molnar v. Ebasco

Constructors, Inc., 986 F.2d 115, 118 (5th Cir. 1993) (citation

omitted).

A Title VII plaintiff bears the burden of proving not only

that the employer’s purported reasons for taking an adverse

employment action are pretextual, but also that the employer

engaged in illegal discrimination. Hicks, 509 U.S. at 511. In

this case, Travis’s burden is crucial for two reasons. First, it

means that “[to] satisfy the statutory burden, the plaintiff must

offer some evidence, whether direct or circumstantial, that permits

the jury to infer that the proffered explanation was a pretext for

illegal discrimination.” Swanson v. General Services Admin., 110

F.3d 1180, 1185 (5th Cir.), petition for cert. filed, 66 U.S.L.W.

3129 (U.S. July 23, 1997) (No. 97-163). Second, although evidence

of pretext, in conjunction with a prima facie case, usually creates

a jury question on the ultimate issue of discrimination, it does

not always do so. We engage in “traditional sufficiency-of-theevidence analysis” to determine whether reasonable jurors could

find discriminatory treatment. Rhodes v. Guiberson Oil Tools, 75

F.3d 989, 993 (5th Cir. 1996) (en banc). In other words, it is

possible for a plaintiff’s evidence to permit a tenuous inference

of pretext and, by extension, discrimination, and yet for the

evidence to be insufficient as a matter of law to support a finding

of discrimination. See Walton v. Bisco Industries, ___ F.3d ___,

___, 1997 WL 433984, at *3 (5th Cir. Aug. 19, 1997) (“Separate from

her pretext evidence, Walton has offered nothing to suggest that
9

impermissible discrimination underlies her termination.”);

Ontiveros v. Asarco, Inc., 83 F.3d 732, 734 (5th Cir. 1996) (“There

may barely be enough evidence to sustain a finding of pretext.

However, there is insufficient evidence to support a reasonable

inference of discrimination.”).

III.

We turn first to Travis’s claim that the denial of her

promotion was caused by sex discrimination. Surprisingly little of

the trial involved any reference to Travis’s sex. A casual

observer would have thought the jury had been asked to decide

simply whether the university should have promoted Travis. During

their extensive testimony, Travis, Garza, and Kirkpatrick discussed

primarily topics such as the prestige of various academic journals,

the legitimacy of publications based on a doctoral dissertation,

the scholarly value of oral presentations to gatherings of

academics or groups of local educators, the place of education

specialists within a division of mathematics and statistics, and so

forth. If nothing else, the trial made it clear that measuring the

value of academic work is sticky business.

Given the legitimate controversy over the quality and

importance of Travis’s research, the jury could reasonably have

concluded that U.T.—San Antonio should have promoted her to full

professor. Indeed, we assume for the purposes of this analysis

that a reasonable jury could even have concluded that the adequacy

of Travis’s research was not the real reason that the university

twice denied her promotion. The jury could have drawn the
10

conclusion that the administration disagrees with Travis’s vision

of the university. Trial testimony suggested that she might oppose

the university’s efforts to emulate major research institutions by

focusing on developing doctoral programs. The administration might

have thought that her energetic pursuit of improvements in

education are incompatible with the division’s mission of

conducting pure research. Or perhaps Garza and Kirkpatrick were

simply jealous of her popularity among students.

The dispositive question, however, is not whether the

university made a mistake or whether it gave forthright

explanations for its failure to promote. Instead, we must

determine whether Travis has presented sufficient evidence that her

sex was the reason for the failure to promote. We can find no more

than a sliver of a suggestion that sex had anything to do with this

employment dispute. We conclude that this sliver, viewed against

the background of the university’s evidence, is inadequate to

produce an evidentiary conflict strong enough to survive a Rule

50(a) attack.

First, Travis claimed that the university treated several male

professors more favorably. Lawrence Williams was the only other

candidate from the College of Sciences and Engineering who applied

for promotion from associate to full professor in the 1993-1994

cycle. In 1994-1995, three other males applied for and received

promotions to full professor. Their success, according to Travis,

indicates gender bias. Provost Garza, however, explained to the

jury in detail his system for evaluating scholarly accomplishments
11

and why these four males had stronger records than Travis’s. His

calculations indicated that one of the males had 47 articles in

“premier” journals, one had 15 such articles, one had six, and one

had three. According to Garza, Travis had published only one

article in a top-tier journal. The male with only three articles

in a premier journal had also published a book with a university

press, an accomplishment on which Garza placed significant weight.

The university could have promoted Travis along with these

males; unlike many positions, there is no artificial limit on the

number of full professors the university can sustain. Thus, even

if the four males were indeed better candidates than Travis, the

denial of promotion could still conceivably have been caused by her

sex. But Travis did not give the jury any basis for concluding

that sex played a role in these five promotion decisions. For the

most part, the four males had stronger records, measured by the

standard academic criteria outlined by Garza. We cannot turn an

attack on those standards, however outmoded they might be, into a

Title VII case. By themselves, minor, reasonable disagreements

about scholarly qualifications do not raise an inference that the

disagreements have their roots in sex discrimination.

Second, Travis urges that the jury could find disparate

treatment based on a comment her dean made in 1986 that she was not

“tough enough” to serve as acting director of her division. That

dean, however, is no longer employed by the university.

Kirkpatrick and Garza did not come to university until 1990 and

1991 respectively. This isolated comment, made more than seven
12

years before the disputed employment decisions by a person with no

connection to Travis’s promotion applications, has no evidentiary

force. See Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 (5th

Cir. 1995) (“[A] single comment, made several years prior to the

challenged conduct, is a stray remark too remote in time to support

an inference of sex discrimination in later employment actions.”);

Mooney v. Aramco Services Co., 54 F.3d 1207, 1221 (5th Cir. 1995)

(finding irrelevant testimony of “sporadic and isolated” anecdotes

of discrimination committed by supervisors not involved in the

employment decisions at issue in the plaintiffs’ suit).

Third, Travis indicated to the jury that females seeking

promotion have faced discriminatory delays. Since 1990, the

university has denied promotions to two female associate professors

and to one male associate professor within Travis’s college.

During that time, six applicants have received promotions to full

professor on their first application, and all of them have been

male. This extremely small sample hardly establishes

discrimination. Moreover, the two women denied promotions were

granted promotions when they applied the following year. Travis’s

evidence is weak on this score because it is geared to her

division, which recommended Travis for promotion at each stage on

both of her applications. The more relevant statistic is

university-wide, and there the university seems to be on solid

ground. Since 1990, 12 of 25 male applicants have received

promotions from associate to full professor, while 7 of 13 female

applicants received the same promotions. Because Garza and
13

Kirkpatrick must approve all of these promotions, these numbers

suggest that they have not been inclined to turn women down based

on their sex.

Fourth, Travis attempted to draw the jury’s attention to pay

disparities between her salary and Keating’s salary. The

university, however, accounted for these disparities by explaining

that other universities had expressed interest in hiring Keating at

higher salaries. To stay competitive, the university had to make

it worth Keating’s while to remain in San Antonio. Travis did not

effectively rebut this explanation.

Travis’s other references to sex discrimination during the

trial were of no significance. In sum, the relative absence of

evidence of sex discrimination could not have given the jury

insight into whether the university allowed Travis’s sex to play a

role in the decision not to promote her. The jury may not have

liked the academic criteria in use at the University of Texas at

San Antonio, but that was not a legitimate ground for finding the

university liable for a Title VII violation. When we view all of

the evidence and resolve any doubts in favor of Travis, we cannot

find sufficient evidence to support the jury’s finding that

Travis’s being female caused the university to deny her a

promotion.

IV.

The jury found that the university retaliated against Travis

for filing her discrimination claim in three ways: (1) by denying

her a promotion in the 1994-1995 cycle, (2) by removing her as
14

assistant division director, and (3) by terminating her salary

supplement from the Office of Naval Research grant.

A.

As we have explained, the university satisfied its burden of

producing evidence of a nondiscriminatory reason for denying

Travis’s second application for a promotion. Outside of disputing

the merits of the promotion decision, Travis did not present

evidence of retaliation. Garcia explained that, because of the

pending lawsuit, he made a special effort to confirm his conclusion

that Travis’s file was not significantly different from the

application she filed in 1993-1994. Contrary to Travis’s

suggestion, Garza did not testify that her suit caused him to try

to find weaknesses in the 1994-1995 application. A few days after

the university denied Travis’s 1994-1995 promotion, the dean of the

college remarked that it was because Travis “hit them with a

lawsuit.” But there was no evidence that the dean, who supported

Travis’s promotion, had any special knowledge of retaliation. In

context, the remark was mere speculation.

Because of the marginal change in Travis’s credentials between

the unsuccessful 1993-1994 application and the 1994-1995

application, a different decision on the merits of her promotion

would have been unusual. Under these circumstances, the mere fact

that Travis filed an EEOC charge cannot support the jury’s

conclusion that the denial was retaliatory.
15

B.

The university explained the termination of Travis’s position

as assistant division director by offering the testimony of Linda

Whitson, vice president of administration and planning. Whitson

stated that Don Allen became division director in January of 1995

and that he quickly decided that he did not need an assistant.

Travis did not contradict Whitson’s claim that there were no

difficulties in the relationship between Allen and Travis. More

importantly, Travis did not attempt to refute the university’s

evidence that Allen made his decision for legitimate administrative

reasons. There was no testimony that Allen even knew about

Travis’s EEOC charge. In other words, Travis did not carry her

burden of producing evidence of retaliatory intent. The jury might

speculate that Allen was cooperating with Garza and Kirkpatrick to

punish Travis, but without any evidence to that effect, we cannot

uphold the jury’s findings.

C.

Finally, the jury found that the university retaliated against

Travis when it cut off her salary supplement. According to the

university, it did not discover that the supplement was in excess

of Travis’s base salary until it investigated her allegation of

unequal pay. When the problem came to light, President Kirkpatrick

took swift action: he notified the director of internal audit and

asked him to make the matter top priority. Kirkpatrick’s memo

mentioned Travis by name so that the auditor would at least have a

place to begin his investigation. Kirkpatrick also testified that
16

he contacted the general counsel of the U.T. system, the executive

vice chancellor of the system, and presidents of other Texas

universities to determine whether his understanding of the OMB

regulation was accurate. After concluding that Travis’s supplement

was a violation of federal law, he decided to end it prospectively

only, assuming that the federal government would not be concerned

about payments Travis had already received. One other faculty

member was receiving a similar grant, and the university ended it,

as well.

Again, aside from the fact that the university cut off the

salary supplement after it knew of Travis’s suit, Travis did little

to rebut the university’s account of its reasons for acting. On

cross-examination, defense witnesses admitted that the OMB

regulation is difficult to interpret and that one might be able to

make a colorable argument that Travis’s grant satisfied the

regulation. But Travis did not present testimony that Kirkpatrick

or the university misunderstood the regulation, much less that

their effort to adhere to their understanding of the regulation was

pretextual. Notwithstanding Travis’s accusations to the contrary,

Kirkpatrick’s procedures were consistent with his stated concerns.

Without evidence, Travis’s assertion that retaliation caused the

termination of her salary supplement is merely her own subjective

belief, which is insufficient to create a jury question. See

Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 153 (5th Cir.

1995) (reversing a jury verdict of discrimination and collecting
17

cases), cert. denied, ___ U.S. ___, 116 S. Ct. 709, 133 L. Ed. 2d

664 (1996).

V.

The judgment based on the jury verdict below is REVERSED, and

a take-nothing judgment is RENDERED in favor of the university and

the board of regents.