* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30950

Summary Calendar

DOCTOR JAMES MURUNGI,

Plaintiff-Appellant,

v.

XAVIER UNIVERSITY OF LOUISIANA,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:05-CV-05242

Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.

PER CURIAM:*

Dr. James Murungi appeals the district court’s grant of summary

judgment dismissing his sex and national origin discrimination claims under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. For the

reasons discussed below, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

April 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-30950

2

I. Background

Xavier University of Louisiana (“Xavier”) employed Murungi as an

assistant clinical professor on its non-tenure track beginning in August 2000.

He received eleven-month contracts for successive academic years despite a

history of poor student evaluations. Xavier ultimately declined to rehire

Murungi, who sued under Title VII for failure to promote and failure to renew

his contract.

In February 2002, Dr. Patricia Lieveld, then Chair of the Division of

Clinical and Administrative Sciences, noted complaints by Murungi’s students

and addressed Murungi’s unwillingness to adopt her substantive suggestions

regarding the content of a lecture. She also suggested that Murungi attend

faculty development programs to improve his teaching. Murungi testified that

Lieveld’s memorandum was “a kooky document.”

Thereafter, Murungi received a memorandum from Dr. Wayne T. Harris,

Dean ofthe College of Pharmacy, stating that student comments and evaluation

results indicated a need for Murungi to improve his teaching. Harris noted that

Murungi’s response to Lieveld’s memorandum conveyed a lack of understanding

of the need to formulate a concrete strategy for improving his effectiveness. 

In May 2002, Harris again expressed concern regarding students’ poor

ratings of Murungi’s teaching and requested that Murungi work with Lieveld to

prepare a faculty development plan. Harris conveyed his desire for Murungi to

function as an effective faculty member and his willingness to provide

assistance.

In January 2005, Dr. Marianne Billeter, a pharmacist employed at

Ochsner Hospital (“Ochsner”), complained about Murungi’s performance with

regard to students at Xavier’s clinical program at Ochsner. Murungi responded

with an email to Billeter calling her allegations “deceitful and disgenuine [sic]”

and generally attacking her treatment of Xavier’s students. Harris subsequently

informed Murungi that his reply email was inappropriate and that because
No. 07-30950

3

Ochsner was an importantinstitutional stakeholder to the College of Pharmacy,

issues with Ochsner must be resolved in a professional, efficient manner. Before

sending the response, Murungi had apparently consulted with and made

revisions suggested by Dr. William Kirchain, Chair of the Division of Clinical

and Administrative Services. Harris was unaware of that interaction when he

sent his memorandum.

Murungi first sought promotion to associate professor in January 2005.

In a December 2004 evaluation of Murungi, Kirchain had recommended

Murungi for promotion and for retention for the following academic year. On

February 2, 2005, however, Murungi received a letter indicating that Kirchain

was rescinding his recommendation for promotion due to students’ complaints

regarding Murungi’s final examination, his persistently low student evaluations,

and his problems with Ochsner personnel. Subsequently, Dean Harris advised

that, as a result of Murungi’s continued problems with poor student evaluations

and his professional interactions with Ochsner, Harris would recommend that

Xavier not renew Murungi’s contract for the 2006-2007 academic year.

In June 2005, Murungi was informed that the Rank and Tenure

Committee had been unable to review his promotion request before the end of

the semester butthat he would receive consideration as the first candidate when

the committee reconvened in the fall. Before the committee could consider his

request, however, Hurricane Katrina forced Xavier to close, prompting

termination of all faculty contracts as of October 2005. Xavier ultimately

declined to rehire Murungi upon issuing new faculty contracts.

Murungi, a male of Kenyan ancestry, brought this discrimination lawsuit

complaining of Xavier’s failure to promote him (although Hurricane Katrina

intervened before Xavier made an official decision) and failure to renew his

employment contract. Xavier filed a motion for summary judgment, and

Murungi argued in response that allfaculty members in his division were offered

post-Katrina replacement contracts except for him, even though several had also
No. 07-30950

4

received poor student evaluations. Murungi asserted that student evaluations

are “deeply imperfect tools” and a “weak measure of instructional quality”; that

his evaluation scores were not so low that they reached an alleged “warning

level” referenced in a letter from Kirchain and that other faculty members who

were retained had scores below that level; that the problem with Billeter at

Ochsner was “sad, but not relevant” because Billeter was not a physician, nurse

or patient; and that three of four letters about Murungi from Ochsner personnel

to Xavier were favorable. Finally, Murungi complained that of the four faculty

members seeking promotion in 2005, three women candidates were promoted

while he was ultimately terminated. 

The district court granted Xavier’s motion for summary judgment, finding

that Murungi had failed to establish a prima facie case of discrimination or,

alternatively, that he had failed to establish pretext or a discriminatory

motivating factor in response to Xavier’s proffered reasons for its actions.

Murungi appeals. 

II. Standard of Review

We review a district court’s grant of a motion for summary judgment de

novo. Hall v. Gillman Inc., 81 F.3d 35, 36 (5th Cir. 1996) (citation omitted).

Summary judgment is proper only when “the pleadings, depositions, answers to

interrogatories, and admissions on file,together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). The movant

bears the initial burden of “‘demonstrat[ing] the absence of a genuine issue of

material fact,’ but need not negate the elements of the nonmovant’s case.” Little

v. Liquid Air. Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quoting Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986)). If the movant meets this burden, then “the

nonmovant must go beyond the pleadings and designate specific facts showing

that there is a genuine issue for trial.” Id. (citing Celotex, 477 U.S. at 325). 

During this process “factual controversies [are resolved] in favor of the
No. 07-30950

5

nonmoving party, but only when there is an actual controversy, that is, when

both parties have submitted evidence of contradictory facts.” Id. The

materiality of facts depends on the substantive law, and only disputes over

outcome-determinative facts properly preclude summary judgment. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

III. Discussion

A. Exhaustion of Administrative Remedies

Xavier first argues that Murungi’s claims should have been dismissed

because Murungi did not exhaust his administrative remedies. The district

court noted a lack of direct evidence that Murungi either filed a complaint with

the Equal Employment Opportunity Commission (EEOC) or received a right-tosue letter before filing suit. Murungi alludes to receiving an EEOC letter prior

to Hurricane Katrina and complains that Xavier should have raised the issue in

its summary judgment motion so that Murungi could respond. Neither the

parties nor the district court addressed the exhaustion issue with any specificity,

however, and we need not resolve itto decide this appeal. See Pacheco v. Mineta,

448 F.3d 783, 788 n.7 (5th Cir. 2006) (noting disagreement in this circuit on

whether exhaustion of administrative remedies in a Title VII suit is a

jurisdictional requirement or merely a prerequisite to suit subject to waiver and

estoppel; and stating that because neither party has a winning argument, “we

need not take sides in this dispute”).

B. Review of Summary Judgment Evidence

Title VII prohibits an employer from discharging or otherwise

discriminating against any individual because of that individual’s sex or national

origin. 42 U.S.C. § 2000e-2(a)(1). “The Title VII inquiry is whether the

defendant intentionally discriminated against the plaintiff.” Roberson v. Alltel

Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004) (internal quotation marks and

citation omitted). Such discrimination can be demonstrated through either

direct or circumstantial evidence. Nasti v. CIBA Specialty Chems. Corp., 492
No. 07-30950

6

F.3d 589, 593 (5th Cir. 2007). 

Because Murungi presents no direct evidence of discrimination, we

analyze his claim using the burden-shifting framework originally set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973):

[A] plaintiff must first create a presumption of intentional

discrimination by establishing a prima facie case. The burden then

shifts to the employer to articulate a legitimate, non-discriminatory

reason for its actions. The burden on the employer at this stage is

one of production, not persuasion; it can involve no credibility

assessment. If the employer sustains its burden, the prima facie

case is dissolved, and the burden shifts back to the plaintiff to

establish either: (1) that the employer’s proffered reason is not true

but is instead a pretextfor discrimination; or (2)thatthe employer’s

reason, while true, is not the only reason for its conduct, and

another motivating factor is the plaintiff’s protected characteristic.

Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (internal quotation

marks and citations omitted).

To establish a prima facie case of discrimination under Title VII, Murungi

must show that: “(1) [he] is a member of a protected class; (2) [he] was qualified

for the position [he] sought; (3) [he] suffered an adverse employment action; and

(4) others similarly situated but outside the protected class were treated more

favorably.” Id. Reviewing the summary judgment record de novo, we find that

Murungi has failed to establish a prima facie case of discrimination. Although

there may be some evidence of the first three elements, Murungi has failed to

present competent summary judgment evidence on the fourth element of

establishing that others were similarly situated but were treated more favorably.

Although Murungi baldly asserts that several faculty members within his

division received poor student evaluations without attendant notices of

impending termination, he has presented no competent summary judgment

evidence that any of these faculty members had a sustained record of poor

evaluations similar to his or that they had problems similar to his issues with

Ochsner.
No. 07-30950

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Further, as the district court found, even assuming arguendo that

Murungi met his initial burden, Xavier would still be entitled to summary

judgment. Xavier has articulated legitimate, non-discriminatory reasons for not

promoting Murungi and for not renewing his contract, including his

longstanding history of poor student evaluations, his students’ recurrent

complaints about his teaching, and his unprofessional response to the Ochsner

complaint. Although Murungi may not believe his student evaluation scores

warrant non-renewal of his contract, employment discrimination laws are "'not

intended to be a vehicle for judicial second-guessing of employment decisions nor

. . . to transform the courts into personnel managers.'" EEOC v. La. Office of

Cmty. Servs., 47 F.3d 1438, 1448 (5th Cir. 1995) (quoting Bienkowski v. Am.

Airlines, Inc., 851 F.2d 1503, 1507–08 (5th Cir. 1988)). 

Once Xavier proffered non-disciminatory reasons for its actions, the

burden shifted back to Murungi, who was required to present evidence of either

pretext or intentional discrimination on Xavier’s part. Murungi testified that

because he was the professor with the lowest salary in his division, he was the

only professor who was notinvited back after Hurricane Katrina, and he was the

only professor who was Kenyan, Xavier’s actions “cannot be anything else” but

discrimination. Because Murungi could offer nothing more than his subjective

belief that Xavier discriminated against him and gave pretextual reasons for its

actions, summary judgment was appropriate on this alternative ground. See

Ray v. Tandem Computers, Inc., 63 F.3d 429, 435 (5th Cir. 1995) (“[B]ald

assertions of . . . discrimination are inadequate to permit a finding that

proscribed discrimination motivated [defendant’s] actions against [plaintiff].”);

see also Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir.

1994) (noting that employee’s “self-serving generalized testimony stating her

subjective belief that discrimination occurred . . . is simply insufficient to support

a jury verdict in plaintiff’s favor”).
No. 07-30950

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IV. Conclusion

Accordingly, finding no error in the district court’s summary judgment on

Murungi’s Title VII claims, we AFFIRM.