Kelly Weeks v. Texas A & M University System, et a ( 2019 )

Case: 18-40255 Document: 00514892764 Page: 1 Date Filed: 03/28/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40255
FILED
March 28, 2019
Summary Calendar
Lyle W. Cayce
Clerk
KELLY WEEKS,
Plaintiff - Appellant
v.
TEXAS A & M UNIVERSITY SYSTEM – AT GALVESTON;
TEXAS A & M UNIVERSITY,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:16-CV-191
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM:*
Dr. Kelly Weeks joined Texas A & M University at Galveston’s (TAMUG)
teaching staff on September 1, 2008 as a tenure-track Assistant Professor of
Logistics. Towards the end of his seven-year probationary term, Dr. Weeks
submitted a dossier, highlighting his accomplishments at TAMUG. As per the
school’s rules and procedures, the dossier materials went through “a multi-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 18-40255
level process” that involved faculty and administrators in Dr. Weeks’
department and at the university level. Each reviewed the dossier to
determine whether Dr. Weeks’ research, teaching, and service to the TAMUG
community was at the quantity and quality expected of tenured personnel.
Although Dr. Weeks received a positive or split recommendation from
the first three rounds of review, TAMUG’s Executive Associate Vice-President
for Academic Affairs and Chief Academic Officer (EAVPAA) determined that
Dr. Weeks’ record did not warrant a promotion. He cited several problems with
the dossier as justification, including the possibility that Dr. Weeks either
misstated or inflated his professional achievements. Dr. Weeks was offered
the opportunity to submit a petition for reconsideration, which he took.
However, after reviewing the materials, the department chair decided that the
petition did not provide any new evidence or substantial new arguments. The
dossier was therefore forwarded to the Provost and the President with the
EAVPAA’s original recommendation.
On February 21, 2014, the department chair notified Dr. Weeks that he
was not approved for tenure. Dr. Weeks appealed, but neither his claim that
the decision was based on inadequate consideration of his professional
performance nor his claim of gender discrimination was substantiated by
subsequent investigations. Dr. Weeks therefore elected to pursue the federal
remedies available to him. He filed a charge with the Equal Employment
Opportunity Commission, followed shortly thereafter by a complaint in district
court under Title VII.
In his complaint, Dr. Weeks made several assertions, the primary one
being that the defendants “engaged in a pattern and practice of favoritism and
preference to female professors.” According to Dr Weeks, male employees were
repeatedly held “to a higher standard without legitimate business reason.”
This double standard, he contended, underlay the decision to deny him tenure,
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not the discrepancies identified by the EAVPAA and others during the review
process. Dr. Weeks further asserted that the defendants retaliated against
him because he expressed objections to the disparate treatment and that these
actions, along with the discrimination, contributed to a hostile work
environment that “constructively terminated” his employment.
The district court considered cross motions for summary judgment before
ruling in favor of the defendants.
We have carefully reviewed the briefs, the applicable law, and the
relevant parts of the record and have found no reversible error committed by
the district court. Texas A & M University System did not have an employment
relationship with Dr. Weeks for the purposes of Title VII. It lacked the right
to hire, fire, supervise, and set Dr. Week’s work schedule; it therefore could not
be said to have the right to control Dr. Week’s conduct. Muhammad v. Dallas
Cty. Cmty. Supervision and Corr. Dep’t., 479 F.3d 377, 380 (5th Cir. 2007)
(applying a hybrid economic realities/common law control test to determine
whether an employment relationship exists). In light of this, Dr. Weeks cannot
take advantage of Title VII’s abrogation of sovereign immunity with respect to
Texas A & M University. The district court correctly dismissed the claims
against it for want of subject matter jurisdiction.
As for the claims against TAMUG, the plaintiff failed to establish a
genuine dispute of a material fact. Throughout the review process, faculty and
administrators raised concerns over Dr. Weeks’ research and what appeared
to be inaccurate descriptions of his professional accomplishments. Dr. Weeks,
however, tendered no evidence that these concerns were pretext for a
discriminatory or otherwise verboten motive. See EEOC v. Exxon Shipping
Co., 745 F.2d 967, 976 (5th Cir. 1984) (holding that pretext cannot be
established by mere conclusory statements); see also Pennington v. Tex. Dept.
of Family and Protective Servs., 469 F. App’x 332, 339 (5th Cir. 2012) (requiring
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something more than subjective belief to show pretext). Likewise, Dr. Weeks
complains of “harassing behavior” from his employer, but he does not identify
any evidence that would indicate that the behavior was severe or pervasive
enough to alter the conditions of his employment, much less constitute a
constructive discharge. See Alaniz v. Zamora-Quezada, 59 F.3d 761, 771 (5th
Cir. 2009); Pa. State Police v. Suders, 542 U.S. 129, 147 (2004).
The judgment is AFFIRMED.
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