Tanik v. Southern Methodist University

                   United States Court of Appeals,

                            Fifth Circuit.

                             No. 96-10612

                          Summary Calendar.

                 Murat M. TANIK, Plaintiff-Appellant,

                                  v.

   SOUTHERN METHODIST UNIVERSITY;      Jeff Kennington, Defendants-
Appellees.

                            July 3, 1997.

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

Before WISDOM, KING and SMITH, Circuit Judges.

     PER CURIAM:

     Murat M. Tanik, a native of Turkey, instituted this action

against his former employer, Southern Methodist University (SMU)

and Jeffrey Kennington, alleging employment discrimination on the

basis of his race and national origin. Tanik asserted claims under

Title VII of the Civil Rights Act of 1964, as amended at 42 U.S.C.

§ 2000e, et seq., 42 U.S.C. § 1981, § 1985, and § 1986, and Texas

Labor code § 21.001, et seq.          The district court granted the

defendants' motion for summary judgment and dismissed all claims.

Tanik appeals.

     The elements of the Title VII claim and the § 1983 claim are

identical. The court evaluates these claims according to a single

analysis.1   Similarly, the Texas statute is basically identical

     1
      Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 1284 n. 1
(5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1099, 130
L.Ed.2d 1066 (1995).

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with, and has been interpreted in conformance with, Title VII.2

       As is well known, in a Title VII case the plaintiff must first

establish a prima facie case of discrimination.3                             To establish a

prima facie case in the context of a denial of tenure, 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 interference of discrimination.4                                 If

the plaintiff establishes a prima facie case, then he has raised a

presumption               of    discrimination     and     the    burden     shifts   to    the

defendant to articulate some legitimate, non-discriminatory reason

for the challenged action.5                   If the defendant meets this burden by

presenting evidence which, if believed by the trier of fact, would

support a finding that unlawful discrimination was not the cause of

the    employment               action,     then   the    presumption        raised   by    the

plaintiff's            prima        facie   case   essentially      disappears,       and   the

plaintiff is left with the ultimate burden, which has never left

him:               that        of   proving   that       the     defendant    intentionally

discriminated against him.6


               2
       Dallas Fire Fighters Ass'n v. City of Dallas, Tex., 885
F.Supp. 915, 927 (N.D.Tex.1995).
       3
     McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct.
1817, 1824, 36 L.Ed.2d 668 (1973).
                   4
         Zahorik v. Cornell University, 729 F.2d 85, 92 (2nd
Cir.1984).
       5
     McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct.
1817, 1824, 36 L.Ed.2d 668 (1973).
           6
      St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509-12, 113
S.Ct. 2742, 2748-50, 125 L.Ed.2d 407 (1993).

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       Other     circuits   have     recognized    that    tenure       decisions   in

colleges and universities involve considerations that set them

apart from other kinds of employment decisions.7                    Those factors

are:       (1) tenure contracts require unusual commitments as to time

and collegial relationships, (2) academic tenure decisions are

often non-competitive, (3) tenure decisions are usually highly

decentralized, (4) the number of factors considered in tenure

decisions is quite extensive, and (5) tenure decisions are a source

of unusually great disagreement.8

       Tenure     decisions    are   not,    however,     exempt    from    judicial

scrutiny under Title VII. To prove a prima facie case, a plaintiff

may be able to show "departures from procedural regularity",

"conventional       evidence    of    bias    on   the    part     of    individuals

involved", or that the plaintiff is found to be qualified for

tenure by "some significant portion of the departmental faculty,

referrants or other scholars in the particular field".9

       Considering all the evidence, in the light of the unique

nature of the tenure decision, we conclude that there is no

evidence that unlawful discrimination played any role in SMU's

decision to deny tenure to Tanik and that SMU presented legitimate

non-discriminatory reasons for the denial of tenure.                    Accordingly,

the judgment of the district court is AFFIRMED.

             7
         Zahorik v. Cornell University, 729 F.2d 85, 92 (2nd
Cir.1984); Kumar v. University of Massachusetts, 774 F.2d 1, 11
(1st Cir.1985).
       8
        Zahorik, 729 F.2d at 92-93.
       9
        Id. at 93-94.

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