Travis v. Board of Regents of the University of Texas System

• Decision Date: 08 September 1997
• Docket Number: No. 96-50764,96-50764
• Citation: 122 F.3d 259
• Parties: 74 Fair Empl.Prac.Cas. (BNA) 1656, 72 Empl. Prac. Dec. P 45,034, 120 Ed. Law Rep. 922 Betty TRAVIS, Plaintiff-Appellee, v. The BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM; University of Texas, at San Antonio, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 259

122 F.3d 259

74 Fair Empl.Prac.Cas. (BNA) 1656,

72 Empl. Prac. Dec. P 45,034, 120 Ed. Law Rep. 922

Betty TRAVIS, Plaintiff-Appellee, v. The BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM;

University of Texas, at San Antonio, Defendants-Appellants.

No. 96-50764.

United States Court of Appeals, Fifth Circuit.

Sept. 8, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 7, 1997.

Larry R. Daves, Larry R. Daves and Associates, San Antonio, TX, for Plaintiff-Appellee.

Blake O. Brodersen, Assistant Attorney General, Henry Clay McGuffey, Office of the Attorney General for the State of Texas, Austin, TX, for Defendant-Appellants.

Appeal from the United States District Court for the Western District of Texas.

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.

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 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 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 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.

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 back- and 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 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 (19...