IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-11225

SATOMI NIWAYAMA, 

 Plaintiff - Appellant

v.

TEXAS TECH UNIVERSITY, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 5:12-CV-00090

Before DAVIS, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant, Satomi Niwayama (“Niwayama”), a Japanese 

woman, appeals the district court’s summary judgment in favor of DefendantAppellee, Texas Tech University (“TTU”), dismissing Niwayama’s tenure 

denial claim under Title VII and pay disparity claims under Title VII and the 

Equal Pay Act (“EPA”). We AFFIRM in part, VACATE in part, and REMAND.

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 10, 2014

Lyle W. Cayce

Clerk

 

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I.

Niwayama was hired by TTU in 2004 as an associate professor of 

chemistry. She applied for tenure in 2004, 2005, 2008, and 2009. Her 

application was denied each time by the Provost. Niwayama was notified of 

the Provost’s fourth and final decision to deny tenure in May 2010. 

Although the decision to reject Niwayama’s application for tenure was 

ultimately the Provost’s, this decision was based on a multi-step process 

involving input from the department chairperson, a department committee, 

the dean of the college, and a college committee. When the Provost was 

deciding on Niwayama’s fourth and final application for tenure, he had 

recommendations in favor of tenure from the head of the college Dean 

Schovanec, the college committee, and the department committee. The only 

recommendation against tenure was submitted by Dominick Casadonte, the 

chair of the department.

When the Provost denied Niwayama’s fourth and final application for 

tenure in the 2009-2010 academic year, this was the last year of Niwayama’s 

probationary period as an associate professor. Once tenure was denied at the 

conclusion of this probationary period, it was expected that Niwayama’s 

position with the university would be terminated. However, unlike on the 

three previous tenure denials, Niwayama decided to appeal the Provost’s May 

2010 decision to a tenure hearing panel. In November 2010, the five member 

panel issued the following findings regarding the Provost’s decision:

1. Dr. Niwayama was apparently held to a different 

standard than other faculty members tenured at the time 

of her tenure application in regard to grants. She and 

another faculty member brought grants to the University 

when they were hired, yet the other faculty member’s 

grant was considered adequate whereas Dr. Niwayama’s

was not. . . . [N]either individual’s grant was truly 

written and received while a faculty member at TTU. 

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However, the other faculty member was favorably 

evaluated for tenure largely based upon this grant. 

Further, the grant funds expended by Dr. Niwayama at 

TTU exceeded those of a third faculty member who was 

also granted tenure at TTU.

2. Dr. Niwayama was apparently held to a different 

standard than other faculty members tenured at the time 

of her tenure application in regard to teaching 

evaluations. Her teaching evaluations were comparable 

to other applicants. Other candidates received early 

tenure with lower student evaluation scores than Dr. 

Niwayama’s. These included a faculty member who was 

tenured in 2007 with overall averages of 3.65 and 3.55, 

and another whose scores were 2.6, 2.95 a year before his 

tenure. Dr. Niwayama’s scores were 3.94, 3.96, while the 

faculty member who started the same year she did and 

received tenure scored 3.95, 3.86. Further, this faculty 

member was allowed one semester with no teaching 

responsibilities, whereas Dr. Niwayama carried an 

additional teaching load.

Based on our findings, we do not believe that the faculty 

member was fairly evaluated based on consistent application 

of the established standards for tenure . . . .

As Niwayama explains and as TTU does not contest, the faculty member 

mentioned in the passage, whose previous research funding was credited 

toward his tenure application was Joachim Weber. TTU also concedes that 

Niwayama “had slightly higher teaching evaluations than Weber,” suggesting 

that Weber may have been one of the faculty members referenced in paragraph 

two of the Tenure Hearing Panel’s findings quoted above. It is also uncontested 

that, although Weber and Niwayama were hired during the same year and for 

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the same compensation, Weber received increasingly higher compensation 

than Niwayama during each successive year of their employment.1

In spite of the Tenure Hearing Panel’s findings, however, the University

President rejected Niwayama’s appeal of the Provost’s decision in March 2011. 

Niwayama then filed a charge of discrimination with the Equal Employment 

Opportunity Commission (“EEOC”) in October 2011. On May 14, 2012, 

Niwayama filed suit in state court against TTU alleging discriminatory 

treatment based on her gender and national origin in violation of Title VII, 42 

U.S.C. § 2000e, and the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”).2 The 

alleged discriminatory treatment included TTU’s failure to (1) grant 

Niwayama’s tenure as a university professor and (2) pay Niwayama as much 

as her male colleagues and non-Japanese female colleague for similar work.

TTU filed a motion for summary judgment, which the district court 

granted. According to the district court, Niwayama’s claims based on tenure 

denial were untimely. The district court also concluded that Niwayama’s

claims for pay disparity failed based on a lack of summary judgment evidence 

regarding pretext (under Title VII) and regarding TTU’s use of a gender1 Below are Niwayama’s and Weber’s salaries from the start of their employment at 

TTU until Niwayama was placed on termination track:

Year

2004-2005

2005-2006

2006-2007

2007-2008

2008-2009

2009-2010

Niwayama

$55,000.00

$56,100.00

$57,180.00

$58,872.00

$59,982.00

$61,781.46

Weber

$55,000.00

$56,650.00

$57,741.00

$59,599.00

$60,982.00

$65,811.20

This chart was submitted by TTU and adopted by the district court in its opinion.

2 Niwayama also brought claims under Chapter 21 of the Texas Labor Code. The 

district court granted summary judgment as to these claims based on untimeliness, which 

Niwayama has not challenged in the present appeal.

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neutral merit system (under the EPA). This appeal followed.

II.

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary 

judgment is proper when “there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” At this stage of 

litigation, the court must view the evidence in the light most favorable to the 

non-movant and may not make credibility determinations.3

III.

Niwayama argues that the district court erred in granting summary 

judgment for the following reasons: (1) the Lilly Ledbetter Fair Pay Act of 

20094 (the “Ledbetter Act” or the “Act”) extends the limitation period of 

Niwayama’s Title VII tenure denial claim; (2) Niwayama provided sufficient 

evidence to create a genuine issue of fact regarding pretext in the Title VII pay 

disparity claim based on gender and national origin discrimination; and (3) 

TTU failed to prove that its “merit” based system of pay actually explains the 

pay differences.

A. Title VII Tenure Denial Claim

Generally, a Title VII claim is timely under 42 U.S.C. § 2000e-5(e)(1) if 

it is filed within either 180 days or 300 days5 of the alleged discriminatory act. 

As the Supreme Court explained in Delaware State College v. Ricks, this time 

period is deemed to have commenced “at the time the tenure decision was made 

3 Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014).

4 42 U.S.C. § 2000(e)-5(e)(3)(A).

5 See Haire v. Bd. of Supervisors of La. State Univ., 719 F.3d 356, 363 n.5 (5th Cir. 

2013) (“Under Title VII, a plaintiff alleging gender discrimination must file a complaint with 

the EEOC within 180 days of the alleged discriminatory act or within 300 days if the plaintiff 

has initially instituted proceedings with a state or local agency with authority to grant 

relief.”).

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and communicated” to the aggrieved employee.6

Accordingly, the date on which this limitation period began to run was 

May 2010, when the Provost informed Niwayama of the decision to deny her

application for tenure. Although the President of the University did not finally 

reject Niwayama’s appeal and confirm the Provost’s decision until March 2011, 

the law is clear that the limitation period is not tolled or affected in any way 

by “the pendency of . . . university grievance procedures,” which a plaintiff 

voluntarily chose to pursue but legally “need not have pursued” prior to 

commencing a Title VII lawsuit.7 As the district court concluded, the tenure 

denial claim expired under 42 U.S.C. § 2000e-5(e)(1) in October 2011, and 

Niwayama filed her lawsuit in May 2012.

Niwayama argues, however, that the limitation analysis is altered by the 

Ledbetter Act. The Act provides that “an unlawful employment practice occurs 

. . . when a discriminatory compensation decision or other practice is adopted 

. . . including each time wages, benefits, or other compensation is paid, 

resulting in whole or in part from such a decision or other practice.” In 

Niwayama’s view, because the Provost’s decision to deny her tenure had 

consequences for her compensation, the Provost’s decision constituted a 

“discriminatory compensation decision” under the Ledbetter Act. Accordingly, 

Niwayama argues, a new Title VII claim for denial of tenure accrued each time 

she received a paycheck that was affected “in whole or in part” by the Provost’s 

allegedly discriminatory decision. As authority, Niwayama cites only to Gentry 

v. Jackson State University, 610 F. Supp. 2d 564, 567 (S.D. Miss. 2009). 

Niwayama acknowledges, however, that this district court’s decision stands for 

“a minority view.”

6 449 U.S. 250, 258 (1980).

7 See Holmes v. Texas A&M Univ., 145 F.3d 681, 685 (5th Cir. 1998).

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Indeed, Niwayama’s argument is contrary to the overwhelming weight 

of authority on this issue. Specifically, the Tenth Circuit explained that under 

the Ledbetter Act “hiring, firing, promotion, demotion, and transfer decisions, 

though often touching on pay, should and do accrue as soon as they are 

announced.”8 Similarly, the District of Columbia Circuit held that the 

Ledbetter Act’s use of “the phrase ‘discrimination in compensation’ means 

paying different wages or providing different benefits to similarly situated 

employees, not promoting one employee but not another to a more 

remunerative position.”9 The Third Circuit also rejected an argument similar 

to Niwayama’s because a more “expansive interpretation of ‘other practice’ . . . 

would potentially sweep all employment decisions under the ‘other practice’ 

rubric” set forth in the Ledbetter Act.10 Finally, this Court in an unpublished

opinion held that the Ledbetter Act does not apply to “discrete acts” by 

employers such as “termination, failure to promote, denial of transfer, and 

refusal to hire.”11

Based on these authorities, therefore, the district court was correct to 

conclude that the limitation period under 42 U.S.C. § 2000e-5(e)(1) had run on 

May 14, 2012 when Niwayama filed her suit. Accordingly, the district court

correctly dismissed Niwayama’s tenure denial claim under Title VII.

B. Title VII Pay Disparity Claim 

In contrast to the Title VII tenure denial claim, the pay disparity claim

falls under the Ledbetter Act and therefore is not time barred. The Ledbetter 

8 Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 630-31 (10th Cir. 2012) (citation 

and internal quotation marks omitted).

9 Schuler v. PricewaterhouseCoopers, L.L.P., 595 F.3d 370, 374 (D.C. Cir. 2010).

10 Noel v. The Boeing Co., 622 F.3d 266, 275 (3d Cir. 2010).

11 Tillman v. S. Wood Preserving of Hattiesburg, Inc., 377 F. App’x 346, 349-50 & n.2 

(5th Cir. 2010).

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Act explicitly excepts pay disparity claims from the Ricks analysis and makes

each paycheck at an allegedly discriminatory rate a separate, discrete act of 

discrimination, effectively resetting the statute of limitations for filing an 

EEOC charge.12 Furthermore, the Act allows a plaintiff to recover “back pay 

for up to two years preceding the filing of the charge,” provided that the 

“unlawful employment practices” that occurred during the filing period are 

“similar or related to unlawful employment practices with regard to 

discrimination in compensation that occurred outside the time for filing a 

charge.”13

Niwayama filed a charge of discrimination with the EEOC on October 24,

2011. Therefore, under the Ledbetter Act, Niwayama can obtain relief for 

discriminatory pay disparity from October 24, 2009 (two years prior to the 

filing of her EEOC charge). It is unclear from the record what time period

Niwayama alleges discriminatory pay under Title VII;14 however, at most, she 

can obtain relief beginning in October 2009. 

As to the substance of this claim, Title VII prohibits discrimination on 

the basis of “race, color, religion, sex, or national origin.”15 The Title VII 

inquiry is whether the defendant intentionally discriminated against the 

plaintiff based on her gender or national origin.16 An intentional 

discrimination claim can be established by either direct or circumstantial 

12 Groesch v. City of Springfield, Ill., 635 F.3d 1020, 1024 (7th Cir. 2011).

13 42 U.S.C. § 2000(e)-5(e)(3)(A). TTU does not contest the application of the Ledbetter 

Act to Niwayama’s federal pay disparity claims.

14 Niwayama’s district court complaint and summary judgment evidence fails to 

identify the exact dates she alleges she was subjected to discriminatory pay in violation of 

Title VII. Niwayama does allege discriminatory pay practices going back to 2004.

15 42 U.S.C. § 2000(e)-2(a)(1).

16 Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004).

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evidence.17 When analyzing a discrimination claim based on circumstantial 

evidence, we apply the McDonnell Douglas burden-shifting framework.18 

Under McDonnell Douglas, the plaintiff must demonstrate that she (1) is a 

member of a protected class; (2) was qualified for the position she sought or 

held; (3) suffered an adverse employment action; and (4) was treated less 

favorably than another similarly situated employee outside the protected 

group.19 If the plaintiff succeeds in establishing her prima facie case, the 

burden shifts to the defendant to identify a non-discriminatory justification for 

the adverse employment action.20 If the employer does articulate a valid 

justification, the burden then shifts back to the plaintiff to demonstrate a fact 

issue as to whether the employer’s proffered reason is pretextual.21

Niwayama alleges that she was discriminated against because of her 

national origin and gender. More specifically, Niwayama claims that she was 

not paid the same salary as male and non-Japanese counterparts in the 

chemistry department. Only the issue of pretext is disputed – whether 

Niwayama has produced sufficient evidence to show that the reason TTU gave 

her for her pay inequality was pretextual. She argues that the summary 

judgment evidence was sufficient to carry her burden by showing that she was 

treated less favorably than another similarly situated employee. We are 

satisfied that Niwayama has produced enough evidence to create a genuine 

issue of material fact on this element. Joachim Weber, a male assistant 

professor at TTU hired at the same time as Niwayama in the same department, 

17 Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005).

18 Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 & n.11 (5th Cir. 2009).

19 Haire, 719 F.3d at 363.

20 Black v. Pan Am. Labs., L.L.C., 646 F.3d 254, 259 (5th Cir. 2011).

21 Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 345 (5th Cir. 2007).

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received a higher annual salary during the years they taught at TTU. 

According to the summary judgment evidence, this inequality occurred despite 

Weber’s lower teaching evaluations and similar history of obtaining grants.

This conclusion is supported by other evidence in the summary judgment 

record and tends to support Niwayama’s claim of pretext rather than TTU’s

argument that the pay differential was based on a neutral formula. It is true 

that Casadonte, the department chair, stated that the pay disparity affecting 

Niwayama resulted from the application of a neutral formula based on

objective measurements of Niwayama’s research funding and teaching 

evaluations. But neither Casadonte nor any other university official was 

willing to provide with any precision how the salary is computed. Perhaps 

more importantly, the Tenure Hearing Panel disagreed with Casadonte’s 

reasoning and determined that Niwayama was held to a heightened standard

in the areas considered, such as funding and teaching evaluations. Because

the same department administrator (Casadonte) considered the same factors 

(funding and teaching evaluations) both in issuing the single recommendation 

to deny tenure and in applying the payment “formula,” we find a reasonable 

jury could make the inference that the payment formula (like the tenure 

criteria) was applied selectively and inconsistently.22

We are persuaded that the hearing panel’s conclusion that TTU was 

applying a selective, inconsistent standard to Niwayama in comparison to 

other similarly situated colleagues regarding tenure supports the argument 

that some disparity was being applied to her regarding pay.23

22 We have suggested in several of our decisions, such as E.E.O.C. v. Louisiana Office 

of Community Services, 47 F.3d 1438, 1444-46 (5th Cir. 1995), that an inference of pretext 

may be drawn based on evidence showing that an employer’s relevant rules and standards 

“were not consistently applied.”

23 TTU has placed considerable emphasis on Louisa Hope-Weeks, a female professor 

who was paid more than most men in the department. But, even if Hope-Weeks was not 

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We conclude that Niwayama’s Title VII discriminatory pay claim is limited 

to the period of October 2009 (two years prior to filing her EEOC complaint) 

until May 2010 when Niwayama was placed on termination track for pay 

purposes. TTU has established a policy of denying pay increases while the 

employee was on this status. 

C. Equal Pay Act Claim

Similar to Niwayama’s pay disparity claim under Title VII, her claim

under the EPA also survives summary judgment. Under the EPA, as codified

at 29 U.S.C. § 206(d): 

“No [covered] employer . . . shall discriminate . . . between 

employees on the basis of sex by paying wages to employees . . . at 

a rate less than the rate at which he pays wages to employees of 

the opposite sex . . . except where such payment is made pursuant 

to (i) a seniority system; (ii) a merit system; (iii) a system which 

measures earnings by quantity or quality of production; or (iv) a 

differential based on any other factor other than sex . . . .”

The EPA’s burden-shifting framework is similar but not identical to that 

applied under Title VII. “‘Once a plaintiff has made her prima facie case by 

showing that an employer compensates employees differently for equal work, 

the burden shifts to the defendant to’ show by a preponderance of the evidence 

that the differential in pay was made pursuant to one of the four enumerated 

exceptions.”24

While the analysis under the EPA is theoretically different than the 

analysis under Title VII, for purposes of this appeal the same facts create a 

genuine dispute. Because TTU did not produce the “complicated formula” that 

subjected to discrimination, it does not mean that Niwayama failed to show a genuine factual 

issue in her Title VII claim. See Walther v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir. 

1992).

24 King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 723 (5th Cir. 2011) (quoting Siler–

Khodr v. Univ. of Tex. Health Sci. Ctr. San Antonio, 261 F.3d 542, 546 (5th Cir. 2001)).

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it relies upon in determining merit raises and the Tenure Hearing Panel 

concluded that factors in the formula were being selectively applied, we are 

persuaded that Niwayama has produced sufficient evidence to create a genuine 

issue of material fact.

IV.

Because Niwayama’s Title VII tenure denial claim was not brought 

timely, we AFFIRM the district court’s summary judgment in favor of TTU on 

that claim. We also conclude, however, that Niwayama produced sufficient 

evidence to raise a genuine dispute as to material facts regarding her pay 

disparity claims under Title VII and the EPA. We therefore VACATE the 

district court’s order dismissing the Title VII and EPA pay disparity claims 

and REMAND this case to the district court for further proceedings consistent 

with this opinion.

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