IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 13, 2007
No. 06-50574 Charles R. Fulbruge III
Clerk
ROSSANA ALVAREZ-DIEMER
Plaintiff-Appellant
v.
THE UNIVERSITY OF TEXAS - EL PASO
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
3:04-CV-148
Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
The sole issue in this case is whether the district court erred in granting
summary judgment to Defendant in Plaintiff’s Title VII discrimination claim.
The district court found that though Plaintiff established a prima facie case of
discrimination, Plaintiff failed to introduce any evidence that Defendant’s
proffered reasons for declining to hire Plaintiff constituted pretext. We agree
and AFFIRM the district court’s ruling.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 06-50574
FACTUAL AND PROCEDURAL HISTORY
Plaintiff Rossana Alvarez-Diemer (“Plaintiff”) received her Ph.D in
Business Administration from New Mexico State University in 1999 and held a
position as a visiting professor at the University of New Mexico from August
2000 through August 2001. Plaintiff applied for a tenure-track professorship at
the University of Texas - El Paso (“UTEP”) in October 2000. UTEP offered
Plaintiff only a visiting professor position in May 2001, and Plaintiff accepted it.
In 2002, Plaintiff again applied for a tenure-track professorship at UTEP
and interviewed for the position on April 1 and 2, 2002. Both parties agree that
the interview did not go well, and UTEP ultimately declined to hire Plaintiff.
Plaintiff appealed the decision to the university provost, who upheld it.
In October 2002, Plaintiff filed a charge with the Equal Employment
Opportunity Commission (“EEOC”), and in April, 2004, Plaintiff filed the action
leading to this appeal, alleging in relevant part that UTEP discriminated
against her because she is female, Hispanic, and non-White. The district court
granted summary judgment to UTEP on Plaintiff’s discrimination claim, finding
that though Plaintiff made a prima facie showing of discrimination, UTEP
proffered legitimate, non-discriminatory reasons for declining to hire Plaintiff
and Plaintiff could not establish that the reasons were pretextual. Plaintiff
appealed the single issue of whether the district court properly concluded that
Plaintiff failed to raise any question of material fact regarding pretext.
STANDARD OF REVIEW
We review a district court's summary judgment ruling de novo, applying
the same standard as the district court. Wyatt v. Hunt Plywood Co., 297 F.3d
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405, 408 (5th Cir. 2002). A party is entitled to summary judgment only if “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 moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(c). On a motion for summary judgment, this court must
view the facts in the light most favorable to the non-moving party and draw all
reasonable inferences in its favor. See Hockman v. Westward Commc'ns, L.L.C.,
407 F.3d 317, 325 (5th Cir. 2004). In reviewing the evidence, this court must
therefore “refrain from making credibility determinations or weighing the
evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.
2007).
We evaluate Title VII discrimination claims under the McDonnell Douglas
framework. See Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003).
Accordingly, the plaintiff must first establish a prima facie case of
discrimination; then the burden shifts to the employer to produce a legitimate,
non-discriminatory reason for the action. See id. Finally, the burden shifts back
to the plaintiff to establish that the defendant’s proffered reasons are a mere
pretext for discrimination. Id. “The plaintiff must rebut each nondiscriminatory
reason articulated by the employer. A plaintiff may establish pretext either
through evidence of disparate treatment or by showing that the employer's
proffered explanation is false or ‘unworthy of credence.’” Id.
ANALYSIS
Applying the summary judgment inquiry to the McDonnell Douglas
standard, the district court found that Plaintiff had met the low threshold of
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No. 06-50574
establishing a prima facie case for discrimination, that Defendant had stated a
legitimate, non-discriminatory reason for the adverse employment action, and
that Plaintiff had failed to show that Defendant’s reasons were a pretext for
discrimination. The only issue on appeal is whether the district court’s final
conclusion in this chain was correct, viz., whether Plaintiff raised some issue of
material fact regarding pretext.
The district court credited UTEP with the following non-discriminatory
reasons for rejecting Plaintiff: “[Plaintiff] was not hired, by majority 6-2 vote of
the departmental faculty, due to her lack of experience in strategic management,
her potential for publishing on strategic management, and her collegiality with
UTEP faculty during her employment as a visiting professor.” Based on these
assertions, the district court stated “UTEP has succeeded in articulating a
legitimate, non-discriminatory reason for not hiring Alvarez-Diemer. UTEP’s
actions can be seen as a self-protective action based upon a reasonable belief that
Alvarez-Diemer’s performance and/or qualifications were inadequate.” Thus, the
district court shifted the burden back to Plaintiff to prove that this argument
was pretext. The district court found that Plaintiff had not created a genuine
issue of material fact on pretext, and we find this conclusion to be correct.
Plaintiff introduces no direct evidence of discrimination and fails to create
a genuine issue of material fact on whether any of UTEP’s proffered reasons
lacked credibility. Attempting to rebut UTEP’s reasons for declining to hire her,
Plaintiff cites only her own CV and her affidavit. This evidence amounts to no
more than bare assertions by Plaintiff herself and fails to create a genuine issue
of material fact on whether Defendant’s proffered reasons were false or
unworthy of credence. As the district court noted, Plaintiff offers no evidence of
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No. 06-50574
pretext beyond her subjective belief that she was discriminated against. This is
insufficient to withstand summary judgment.
CONCLUSION
Plaintiff has introduced insufficient evidence to create a genuine issue of
material fact regarding the credibility of Defendant’s reasons. Accordingly, the
district court properly found that Plaintiff could not demonstrate pretext and
properly granted summary judgment in UTEP’s favor. Thus, we AFFIRM.
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