IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-60598

_____________________

DENNIS J. KRYSTEK,

Plaintiff-Appellee,

versus

UNIVERSITY OF SOUTHERN MISSISSIPPI,

Defendant-Appellant.

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_____________________

No. 97-60824

_____________________

DENNIS J. KRYSTEK,

Plaintiff-Appellee,

versus

UNIVERSITY OF SOUTHERN MISSISSIPPI,

Defendant-Appellant.

_________________________________________________________________

Appeals from the United States District Court for the

Southern District of Mississippi

_________________________________________________________________ January 14, 1999

Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:2

Dennis J. Krystek was an assistant professor at the University

of Southern Mississippi (“USM”) who was d enied tenure because he

failed to publish any scholarly work. He sued USM, alleging

discrimination based on gender, arguing that women were held to a

lesser standard. A jury agreed and found that USM violated Title

VII of the Civil Rights Act of 1964 by denying him tenure. On

appeal, USM argues that (1) there was insufficient evidence to

support the jury’s verdict and (2) Krystek failed to file a timely

complaint with the Equal Employment Opportunity Commission

(“EEOC”). Because we find the evidence insufficient to support a

jury verdict, we decline to address the second issue.

I

At USM, full-time, tenure-track faculty members go through a

five- to seven-year review proces s before achieving tenure--an

expectation of continuing employment for an indefinite period. The

criteria for making tenure is set out in the Faculty Handbook:

“sustained quality performance in the three university missions of

teaching, research or other creative activity, and service, with

the expectation that the candidate will achieve a high level of

performance in two of these categories.” The second category,

research, essentially is a requirement to publish scholarly work.

Although USM’s College of Liberal Arts Tenure and Promotion Policy

lists a number of other research-related endeavors for which tenure

candidates will receive credit, at the top of the list are3

“[b]ooks, monographs, chapters, essays, reviews and other scholarly

work published by reputab le journals, scholarly presses, and

publishing houses that acc ept works only after rigorous

professional review.”

During the probationary period for tenure, the candidat e

receives annual evaluations, a third year comprehensive review, a

fifth year review that usually coincides with a review for

promotion to associate professor, and, if necessary, a subsequent

sixth or seventh year review. If a candidate is not awarded tenure

by the seventh year, the eighth y ear is the last year of the

candidate’s employment contract.

Dennis Krystek was hired by the political science department

at USM as a visiting assistant professor in 1988. In 1989, when

his one-year appointment expired, he was hired into a tenure-track

position, as an assistant professor in that department. In 1991,

he postponed his third year review. His evaluation for that year

noted that he needed to devote more time to research. In 1992,

Krystek received his third year review. In the interim, he had

published a short, six-page article in the Louisiana Bar Journal

.

Although the article was treate d as a promising sign, his

evaluat ion nevertheless stressed his need to publish articles in

order to receive tenure. In 1993, his evaluation again noted that

he needed to work on publishing and that publishing should be a

priority for him. In 1994, he published another six-page article4

with the Louisiana Bar Journal

. He still had not published a fulllength article or any of the other types of scholarly works listed

in the College Of Liberal Arts Tenure and Promotion Policy.

In October 1994, he ap plied for tenure and promotion to

associate professor. For a candidate in Krystek’s department, the

application is first reviewed by the candidate’s tenured

departmental faculty, then by the College Advisory Committee, the

Dean of the College, the University Advisory Committee, and jointly

by the Vice President for Academic Affairs and the Vice President

for Research and Planning. Recommendations are made by each party

that reviews the applicat ion and those recommendations and the

candidate’s dossier are ultimately reviewed by the President. If

the President believes the candidate merits tenure, he makes that

recommendation to the Board. If the Board agrees, tenure and

promotion are awarded.

In Krystek’s case, the department recommended him for tenure

but not for promo tion. The negative recommendation was based

solely upon Krystek’s failure to publish scholarly work. Because

his department was concerned that his application for tenure would

not be treated favorably at the higher levels of review, the

department obtained permission from USM to give Krystek a two-year

extension on his tenure -track so that he could improve his

publication record.5

Krystek chose not to take advantage of the two-year period to

publish any significant scholarly work. Instead, a year later, in

October of 1995, Kr ystek resubmitted his application although he

had published only one piece, a two-page co-authored article in a

USM public relations magazine. At that time, in his entire career

at USM, indeed in his entire academic career, Krystek had published

only two works that even he claimed met the requirement of being

published in “reputable journals, scholarly presses, and publishing

houses that accept works only after rigorous professional review.”

Those two articles were both six-page articles in the Louisiana Bar

Journal . One article had twenty footnotes, the other sixteen.

When Krystek reapplied for tenure after only a year, and

without having published a full-length article, the dep artmental

faculty recommended against both tenure and promotion. Every other

person who subsequently reviewed Krystek’s application voted

against both tenure and promotion with the exception of two of the

five members of the College Advisory Committee, who recommended him

for tenure. The President ultimately denied Krystek both promotion

and tenure.

At some point during the process of Krystek’s review, Krystek

became convinced that the department had an ulteri or motive for

imposing publishing requirements on him. Krystek came to believe

that the requirements were being imposed on him in order to deny

him tenure because of his gender. The only potential evidence6

Krystek had to support his belief was a comment made by the interim

dean of his d epartment, Jerold Waltman. Because this comment

provides the basis for Krystek’s complaint, it is necessary to

determine the evidentiary value of this comment given the situation

in which it was made. We consider this comment in context of all

of the testimony at trial, but viewed in a light most favorable to

Krystek.

Krystek went up for tenure in 1994 and his department voted

for tenure but against promotion. At that point, two of his

supporters were the dean of the department, Ron Marquardt, and the

interim dean, Waltman. Both voted in favor of Krystek for tenure,

though both were concerned about his publishing record. Because of

their concern over Krystek’s publishing record and the result of

the vote, Waltman and Marquardt met with Krystek to discuss ways to

improve his chance for tenure. It was at this meeting that Waltman

and Marquardt suggested that Krystek take a two-year extension to

publish more articles. At the meeting, Marquardt also recommended

that Krystek not teach over the summer but instead devote his time

to writing. Krystek ultimately declined to pursue this suggestion.

Finally , Marquardt and Waltman both offered to proofread any of

Krystek’s work and Marquardt offered to do what he could to assist

Krystek in getting work published.

At this meeti ng, Krystek complained that another assistant

professor, Kathanne Greene, had gotten tenure.7

At trial, Krystek testified that Waltman responded, “That’s a

problem. There are different standards for males and females.”

Krystek further stated that Dr. Marquardt said nothing in response

to this comment and that the conversation then turned to another

topic. At trial, Waltman admitted to making a comment to that

effect, but was unclear about whether he made that comment at the

meeting with Marquardt or at some other time. Waltman did remember

Krystek complaining about Greene. He testified that he recalled

trying to redirect the conversation toward what Krystek needed to

do to get tenure. At trial, his explanation for the remark was

that he was expressing a general belief that men and women are

treated differently, not a belief about Krystek’s treatment in this

case.

Marquardt testified that he has no recollection of such a

comment being made in his presence. When Marqaurdt and Waltman

discovered that Krystek had made claims about discrimination on the

basis of gender, both abstained from participating in any further

employment decisions with respect to Krystek.

Based on Waltman’s comment, Krystek concluded that two female

members of the faculty were treated more favorably than he was. He

believes that Gail Lucas, who was not on tenure-track, was not held

to the same requirements that he was. He also believes that

Greene, an assistant professor on tenure-track, was held to a lower

standard regarding her research. Greene had had a full-length8

article accepted for publication at the time she was granted

tenure, but she had not published any full-length articles while an

assistant professor at USM. Before working at USM, however, Greene

published her doctoral thesis as a book.

II

On March 31, 1995, Krystek filed a charge of dis crimination

with the EEOC, alleging that he was denied promotion and tenure

because of his gender. On October 31, 1995, the EEOC issued its

notice of a right to sue. On January 25, 1996, Krystek filed suit

in Mississippi state court, alleging a violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et

seq. USM removed to federal district court. However, it was not

until October 8, 1996, that the President of USM finalized USM’s

decision not to promote or tenure Krystek. The case was tried

before a judge and jury in May of 1997.

At the conclusion of USM’s case, USM moved for a judgment as

a ma tter of law. The court denied the motion. USM renewed the

motion before the case was submitted to the jury. Again, the court

denied the motion.

After deliberation, the jury returned the following verdict:

Question No. 1: Do you find by a preponderance that

plaintiff’s gender was a motivating factor in the

decision of the defendant to terminate the plai ntiff?

Yes.

Question No. 2: Do you find by a preponderance of

the evidence that the defendant, University of Southern

Mississippi, would have made the same employment decision9

concerning the plaintiff even if unlawful motive, namely

plaintiff’s gender, was not present? Answer: No.

Question No. 3: What amou nt of money, if any, if

paid now in cash, would adequately compensate the

plaintiff? Answer in dollars and cents for damages, if

any, or answer “None.” Answer: None.

The court ordered USM to reinstate Krystek to the position of

a ssistant professor and enjoined USM from making emplo yment

decisions regarding Krystek on the basis of his gender. USM moved

for judgment as a matter of law and again the co urt denied USM’s

motion. USM then filed a timely appeal.

III

The issue before us is whether the district court erred in

refusing to grant USM’s Rule 50 motion for judgment as a matter of

la w. We review such a decision under the standards set forth in

Boeing Co. v. Shipman

, 411 F.2d 365 (5th Cir. 1969), and adopted by

Rhodes v. Guiberson Oil Tools

, 75 F.3d 989 (5th Cir. 1996), in the

context of employment discrimination cases:

Under Boeing, “[t]here must be a conflict in substantial

evidence to create a jury question. ” Substantial

evidence is defined as “evidence of such q uality and

weight that reasonable and fair minded men in the

exercise of impartial judgment might reach different

conclusions.” Consequently, “[a] mere scintilla of

evidence is insufficient to present a question for the

jury.” Even if the evidence is more than a scintilla,

"Boeing assumes that some evidence may exist to support

a position which is yet so overwhelmed by contrary proof

as to yield to a directed verdict."

Id. at 993 (citations omitted).10

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 i ndividual with respect to his

compensation, terms, conditions, or privileges of employment,

b ecause of such individual's race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1). Krystek presents two

arguments to support his claim that USM discriminated against him.

First, Krystek argues that Waltman’s comments amount to evidence of

direct discrimination-- t hat the comments in and of themselves

amount to evidence that the decision to deny tenure was motivated

by gender. Second, Krystek argues that the disparate treatment he

received from USM, when compared to that received by Lucas and

Greene, demonstrates that the decision was motivated by gender.

A

Krystek’s first argument can be dismissed as a matter of law.

Under our well established case law, the most that Waltman’s

comment can amount to is a stray remark in the workplace. We

addressed this issue in Brown v. CSC Logic, Inc.

, 82 F.3d 651 (5th

Cir. 1996), where we noted that, in order for comments in the

workplace to provide sufficie nt 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 employment11

decision at issue; and 4) related to the employment decision at

issue.” Id. at 655.

There is no dispute that Waltman’s comments were made two

years prior to the actual decision to deny Krystek tenure. Nor is

there any dispute over the fact that Waltman did not participate in

the ultimate decision to deny Krystek tenure. Finally, Waltman’s

remarks represent only his perception of how tenure decisions were

being made at that time. There is no evidence in the record that

Waltman actually sought to enforce a d ifferent standard for men

rather than women, let alone that he exercised undue influence on

others at USM to do so. Indeed, there is no evidence, despite

adequate discovery, that such a policy or practice was ever applied

at the university, be yond the allegations specifically cited in

Krystek’s individual case. Barring such evidence, Waltman’s

comments must be regarded as stray remarks. In this case, Waltman

was far removed from the final decision to grant tenure--a decision

that involved votes from twenty different members of USM.

Waltman’s comments are not probative evidence t hat the school’s

decision in Krystek’s case was motivated by gender.

B

Krystek’s second argument--that he received disparate

treatment--requires a closer consideration of the jury’s role as

fact-finder in Title VII cases. In S t. Mary’s Honor Center v.

Hicks , 509 U.S. 502 (1993), the Supreme Court addressed the issue12

of assessing a motion for judgment as a matter of law in the light

of the burden-shifting framework set forth in McDonn ell Douglas

Corp. v. Green , 411 U.S. 792 (1973). The court stated that: “The

fact finder's disbelief of the reasons put forward by the defendant

( particularly if disbelief is accompanied by a suspicion of

mendacity) may, together with the elements of the prima facie case,

suffice to show intentional discrimination. Thus, rejection of the

defendant's proffered reasons will permit the trier of fact to

infer the ultimate fact of intentional discrimination.” H icks

, 509

U.S. at 511.

In Rhodes

, we sta ted that, in an employment discrimination

case, in order for the plaintiff to prevail, the evidence taken as

a whole must “(1) create[] a fact issue as to whether each of the

employer's stated reasons was what actually motivated the employer

and (2) create[] a reasonable inference that

. . . [the plaintiff’s

membership in a protected class] was a determinative factor in the

actions of which plaintiff complains.” R hodes

, 75 F.3d at 994.

The district court must therefore grant a motion for judgment as a

matter of law “if the evide nce put forth by the plaintiff to

establish the prima facie case and to rebut the employer's reasons

is not substantial.” Id.

We therefore re view the jury’s fact-finding role, and the

judge’s denial of USM’s Rule 50 motion, to determine if substantial

evidence supports Krystek’s claims that he was denied tenure13

because he was a male and that USM’s stated reason for denying him

tenure is pretextual. When considering the evidence in support of

Krystek’s claims, “we view all the evidence in the light most

favorable to the verdict.” I d. at 995 (citing Boeing

, 441 F.2d at

374).

IV

In the case at hand, there is neither substantial evidence to

r ebut USM’s stated reason for denying tenure nor substantial

evidence to support a finding that Krystek’s denial of tenure was

motivated by his gender.

In Tanik v. Southern Methodist University , 116 F.3d 775 (5th

Cir. 1997), we recently set forth the necessary elements for

establishing that a d enial of tenure amounts to discrimination.

“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.” Id. at

775. In the context of a Rule 50 motion, if a university can show

that any evidence of gender discrimination, “vi ewed against the

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

an evidentiary conflict strong enough to survive a Rule 50 attack,”

the uni versity is entitled to a verdict in its favor. T ravis v.

Board of Regents of the University of Texas System , 122 F.3d 259,

264 (5th Cir. 1997). In this case, the evidence as a whole, viewed

in a light most favorable to the verdict, simply does not establish14

either that Krystek was qualified for tenure or that Krystek was

denied tenure in circumstances that permit an inf erence of

discrimination.

The e vidence Krystek marshals to his cause is simply not

substantial enough to permit an inference o f discrimination.

Krystek argues that he was qualified for tenure, but the evidence

clearly indicates that Krystek failed to meet an establishe d USM

tenure requirement: publishing scholarly work in “reputable

journals, scholarly presses, and publishing houses that accept

works only after rigorous professional review.”

Krystek cannot point to a single tenured facult y member who

has not published scholarly work. Krystek also claims that his two

publications meet the requirement of having published scholarly

w orks “by reputable journals, scholarly presses, and publishing

houses that accept works only after rigorous professional review.”

However, even in a light most favorable to the verdict, there can

be no argument that a six-page article containing minimal citation

to other scholarly work meets this requirement. In fact, Krystek

admitted in his testimony that the articles were not peer-reviewed

articles.

Krystek could still establish that he was treated differently

from women in his department, thereby calling into question the

validity of the tenure qualification. However, there is no

e vidence that Krystek was treated differently from femal e15

tenure-track assistant professors. Krystek cannot point to a

single simila r ly situated assistant professor who was awarded

tenure despite not publishing scholarly work.

Krystek points to the fact that Lucas, a nontenure-track

teacher, was not required to publish. However, this fact is

irrelevant as Lucas was not similarly situated to Krystek. S ee,

e.g

, N ieto v. L&H Packing Co.

, 108 F.3d 621, 623 (5th Cir. 1997)

(holding that pla intiff’s disparate treatment case fails where

plaintiff compared his treatment to another employee but could not

show that other employee was similarly situated). Lucas was not on

tenure-track and therefore ineligible for the benefits that tenure

confers on faculty members. Furthermore, there is nothing in the

record to indicate that Krystek sought and was denied a position

similar to Lucas’s.

Krystek also points to Greene as an example of an assistant

professor who was not required to publish during her time at USM.

Greene, however, actually had published a book prior to teaching at

USM. Krystek argues that Greene’s book was her dissertation, and

that his dissertation was available in a bound volu me also. The

record, however, clearly indicates that although his dissertation

was turned into a bound volume, it was never published by a

publishing house that subjected his work to profe ssional review.

The record is equally clear that Greene’s book was.16

There can be no substantial evidence permitting an inference

of discrimination when there is no evidence of disparate treatment

and no direct evidence of discrimination. In this case, Krystek

c ould not produce a female professor who was treated differen tly

than he was. For the reasons stated above, the plaintiff’s attempt

to characteriz e Waltman’s remarks as direct evidence of

discrimination also fail. Even when viewed in a light most

favorable to the verdict, the evidence simply does not permit a

reasonable inference that Krystek’s gender was a determinative

factor in USM’s decision to deny tenure.

Krystek was repea tedly encouraged to publish a full-length

article. He was apparently either unwilling or unable to do so.

There is no evidence that his colleagues did not face similar

pressures in their efforts to attain tenured positions nor is there

any evidence that, having failed to meet this requirement, female

assistant professors were nonetheless granted tenure. The evidence

in this case therefore simply does not amount to the kind of

“ evidence of such quality and weight that reasonable and fair

minded men in the exercise of impartial judgment might reach

different conclusions.” Boeing , 411 F.2d at 374.

We accord great deference to a jury’s finding of facts.

Nevertheless, when confronted with a case like this one where the

evidence simply does not support the jury’s findings but rather the

posit ion of the losing party, the court must grant judgment as a17

matter of law in favor of that party. Title VII is designed to

ensure that persons of di fferent gender are treated equally.

Where, as here, an assistant professor has been treated equally and

has been held to the same standards applied to every other tenuretrack faculty member at the university, he may not seek refuge

under Title VII s imply because he is unable or unwilling to meet

the minimum requirements for tenure.

V

Our holding in Rhodes requires judgment as a matter of law

when “the evidence put forth by the plaintiff to establish the

prima facie case and to rebut the employer's reasons is not

substantial.” R hodes

, 75 F.3d at 994. The evidence in this case,

even in a light most favorable to the jury verdict, establishes

that Krystek’s denial of tenure was not motivated by his gender but

instead by Krystek’s inability to publish scholarly work. We

therefore hold that the district court erred in denying USM’s Rule

50 motion. Because we conclude that there was insufficient

evidence to support a jury verdict in Krystek’s favor, we decline

to address USM’s argument that Krystek failed to timely file an

EEOC complaint.

For the foregoing reasons, the district court’s judgment is

REVERSED and

REMANDED for entry of judgment for the defendant.