Moini v. University of Texas At Austin et al
Filing
54
ORDER GRANTING 36 Motion for Summary Judgment. Signed by Judge Sam Sparks. (jk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MEHDI MOINI,
Plaintiff,
-vs-
Case No. A-10-CA-180-SS
UNIVERSITY OF TEXAS AT AUSTIN;
WILLIAM C. POWERS, JR. in His Official
Capacity as President; STEPHEN F. MARTIN;
RICHARD B. QUY, and JENNIFER S.
BRODBELT,
Defendants.
__________________________________________
ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Defendants’ Motion for Summary Judgment [#36], Plaintiff Mehdi Moini’s response
[#42] thereto, and Defendants’ reply [#44]. Having reviewed the documents, the relevant law, and
the file as a whole, the Court now enters the following opinion and order GRANTING Defendants’
motion.
Background
Post hoc ergo propter hoc—a principle which states if one event occurs after another, the
second event must have been caused by the first—is the theme of Moini’s discrimination and
retaliation claims. Unfortunately, it is also a well-known logical fallacy. Because Moini has failed
to provide evidence the adverse employment actions taken against him were the result of his Iranian
national origin, age, or participation in protected activity; and because Moini has failed to rebut the
legitimate, non-discriminatory reasons given by Defendants for their actions, the Court grants
summary judgment in favor of Defendants.
I.
Factual Background
The Court has described Moini’s factual allegations in this case on two prior occasions.
See Order [#27]; Order [#20]. The Court incorporates the relevant allegations by reference, and
discusses here only the record evidence necessary to resolve Defendants’ motion.
In short, Moini claims his former employer, Defendant University of Texas at Austin,
discriminated against him on the basis of his national origin and age, and in retaliation for making
complaints of discrimination. Moini held an appointment at the University, which was renewed
annually from 1998 until his termination in 2008. Most notably, starting in 2000, Moini served as
Director of Mass Spectrometry for the Department of Chemistry and Biochemistry.
Moini complains about a litany of acts and events he claims were discriminatory and/or
retaliatory, including: removal of his Adjunct Professor title in August 2007; his removal from the
Department’s ‘cmprof’ email mailing list in September 2007; a reprimand letter he received in
February 2008; an unfavorable “shop survey” conducted in March 2008; his not being hired for a
tenure-track faculty position in March 2008; removal of his Lecturer title in May 2008; his nonrenewal as Directory of Mass Spectrometry in July 2008; his interim replacement as Director by
Rambod Daneshfar in July 2008; his permanent replacement as Director by Karin Keller in
December 2008; denial of access to the faculty grievance procedure for his non-renewal; and
negative job references provided to his prospective employers. Pl.’s Resp. [#42] at 3–4.
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For their part, Defendants agree most of these acts and events took place.1 However, they
deny these acts are sufficient to establish Moini’s discrimination or retaliation claims for four
reasons. First, Defendants note some of the acts are simply not adverse employment actions upon
which Moini can base his claims. Second, Defendants argue there is no evidence the acts were
motivated by Moini’s national origin or age, or were taken in retaliation for Moini’s engaging in
protected activity. Third, Defendants proffer purportedly legitimate, non-discriminatory reasons for
each of Moini’s cognizable adverse employment actions. Finally, Defendants contend some of
Moini’s claims fail as a matter of law because he did not exhaust his administrative remedies with
respect to those claims.
In reply, Moini argues he has established a prima facie case for his claims, and further asserts
the reasons proffered by Defendants for their adverse employment actions were merely pretextual.
Finally, he asserts he has sufficiently exhausted his administrative remedies with respect to all of his
claims.
For the following reasons, the Court agrees with Defendants.
Analysis
I.
Summary Judgment — Legal Standard
Summary judgment shall be rendered when the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any material fact and
1
Defendants do dispute Moini’s final allegation, that they provided negative job references to prospective
employers. See Defs.’ Reply [#44] at 7 (“Plaintiff has no evidence that he even received negative employment references
after September 15, 2007, other than his own assumptions to that effect.”).
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that the moving party is entitled to judgment as a matter of law.2 FED . R. CIV . P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323–25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.
2007). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury
could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all
inferences drawn from the factual record in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508.
Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); Anderson, 477 U.S. at 254–55.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere
conclusory allegations are not competent summary judgment evidence, and thus are insufficient to
defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are
not competent summary judgment evidence. Id. The party opposing summary judgment is required
to identify specific evidence in the record and to articulate the precise manner in which that evidence
supports his claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006).
Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to
2
Amendments effective December 1, 2010 changed Rule 56, moving language from 56(c) to 56(a), and
changing the Rule to read “genuine dispute as to any material fact,” rather than “genuine issue as to any material fact.”
F ED . R. C IV . P. 56.
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support the nonmovant’s opposition to the motion for summary judgment. Id. “Only disputes over
facts that might affect the outcome of the suit under the governing laws will properly preclude the
entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues which are “irrelevant
and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id.
If the nonmoving party fails to make a showing sufficient to establish the existence of an element
essential to its case and on which it will bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322–23.
II.
Moini’s Claims
The Court finds all of Moini’s claims fail for (at least) one of three reasons: (1) the acts he
complains of are not “adverse employment actions” within the context of the particular claim; (2)
he has failed to demonstrate a genuine dispute of material fact on the issue of causation; or (3) he
has failed to rebut the legitimate, non-discriminatory reasons proffered by Defendants for their
actions.3 Accordingly, the Court grants summary judgment in favor of Defendants on Moini’s
claims.
A.
Title VII Burden Shifting Framework
“Assuming a plaintiff has exhausted his administrative remedies, he may prove a claim of
intentional discrimination or retaliation either by direct or circumstantial evidence.” McCoy v. City
of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). When a plaintiff bases his or her claims on
circumstantial evidence of discrimination, courts analyze those claims under the burden-shifting
framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. Under that
3
Because the Court finds Moini’s claims fail on these grounds, it does not address Defendants’ arguments
regarding exhaustion of administrative remedies.
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framework, the plaintiff must first establish a prima facie case of discrimination or retaliation. Id.
“If the plaintiff makes a prima facie showing, the burden then shifts to the employer to articulate a
legitimate, nondiscriminatory or nonretaliatory reason for its employment action.” Id. at 557.
However, “[t]he employer’s burden is only one of production, not persuasion, and involves no
credibility assessment.” Id. “If the employer meets its burden of production, the plaintiff then bears
the ultimate burden of proving that the employer’s proffered reason is not true but instead is a pretext
for the real discriminatory or retaliatory purpose. To carry this burden, the plaintiff must rebut each
nondiscriminatory or nonretaliatory reason articulated by the employer.” Id.
B.
Prima Facie Case — Discrimination and Retaliation
The Supreme Court has cautioned, because the facts of each Title VII case will vary, the
prima facie proof required may likewise vary. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 n.13 (1973) (“The facts necessarily will vary in Title VII cases, and the specification above
of the prima facie proof required from respondent is not necessarily applicable in every respect to
differing factual situations.”). In this case, however, the standard Fifth Circuit prima facie elements
of discrimination and retaliation are appropriate.
1.
Discrimination
To establish a prima facie case of intentional discrimination, Moini must show he: (1) is a
member of a protected group; (2) was qualified for his position; (3) was discharged or suffered some
adverse employment action by the employer; and (4) was replaced by someone outside his protected
group or was treated less favorably than other similarly situated employees outside the protected
group. McCoy, 492 F.3d at 556. The only elements in dispute in this case are (3) and (4).
2.
Retaliation
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To establish a prima facie case of retaliation, Moini must show: (1) he participated in an
activity protected by Title VII; (2) his employer took an adverse employment action against him; and
(3) a causal connection exists between the protected activity and the adverse employment action.
Id. at 556–57. The only elements in dispute in this case are (2) and (3).
3.
“Adverse Employment Action”
In the Fifth Circuit, there are two different standards for what constitutes an actionable
“adverse employment action” under Title VII. In the context of a discrimination claim, only
“ultimate employment decisions”—such as hiring, granting leave, discharging, promoting, or
compensating—are actionable. See McCoy, 492 F.3d at 560 (“[O]ur precedent recognizing only
‘ultimate employment decisions’ as actionable adverse employment actions remains controlling for
Title VII discrimination claims . . . .”).
The standard is lower for retaliation claims, however. Specifically, for an action to be an
“adverse employment action” in the context of a retaliation claim, “a plaintiff must show that a
reasonable employee would have found the challenged action materially adverse, which . . . means
it well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotations
omitted).
C.
Application
As an initial matter, the Court notes Moini provides no direct evidence of retaliation. Rather,
he relies on circumstantial evidence:
Just as in 2003 when Plaintiff complained of discriminatory acts by Defendants and
was then hit with a poor performance evaluation, in 2007 when he complained
informally and formally of discrimination in the department he was immediately hit
with retaliatory acts which affected the terms, conditions and privileges of his
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employment–removal from cmprof email list, removal of titles of Adjunct Professor
and Lecturer, failure to promote to Research Professor, nonrenewal, not hired for
faculty position in March 2008, and the negative job references.
Pl.’s Resp. [#42] at 7–8.
Because Moini’s evidence of retaliatory motive is based entirely on the timing between his
complaints and Defendants’ actions, the Court first provides a brief timeline of Moini’s formal and
informal complaints.
1.
Moini’s History of Complaints
On March 6, 2003, Moini sent an email to Dr. Jennifer Brodbelt, in which Moini expressed
his belief the Department had “double standards with respect to [his] desire to join the rank of
tenured faculty.” Defs.’ Mot. Summ. J. [#36], Att. 3 at 2. Although Moini did not mention his
national origin or age, he suggested “favoritism” and “personal bias” may have played a part in his
not being awarded a faculty title, and noted the lack of diversity in the Department. Id. at 3–4.
On July 19, 2004, Moini received a “less than satisfactory” annual performance evaluation.
Id. at 8, 6–9. The evaluation summarized Moini’s performance as follows:
Mehdi has had mixed results in his performance this year. His technical expertise in
the field of mass spectroscopy is superior, and he never fails to provide a superior
performance with regard to technical tasks such as equipment selection, teaching,
student and staff training, publications, and research. Mehdi’s performance has been
generally less than satisfactory, however, with respect to maintaining the MSF. Staff
turnover within the facility has continued to be high and must be brought under
control. . . . Secondly, Medhi must improve his communication with upper
management . . . .
Id. at 8.
On July 21, 2004, Moini sent an email to his evaluators, Drs. Quy and Holcombe, disagreeing
with his evaluation. Id. at 10–13. After explaining the reasons why he disagreed, Moini concluded
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by stating: “In summary I believe that your performance appraisal is very unfair and has been reached
on a personal basis rather than facts and actual job performance.” Id. at 12.
On August 9, 2004, Moini took his complaints to Dean Mary Ann Rankin and incoming
Department Chair Dr. Steve Martin. Id. at 14. He complained Dr. Holcombe (outgoing Department
Chair) was biased against him because: (1) Moini witnessed a sexual relationship involving
coworker Dr. David Laude in 1990; (2) Holcombe and Laude had “strong ties”; (3) “intolerance of
a few members of Analytical Division toward diversity and their unhappiness toward [Moini’s]
scientific and professional achievements”; (4) false accusations against Moini; and (5) Moini’s
complaint regarding double standards and bias in the Department. Id. Moini went on to complain
in some detail about the various ways in which he felt he was mistreated. Id. at 14–16.
On December 4, 2005, Moini sent Dr. Martin an email in which he complained about the
formation of an oversight committee for the Mass Spectrometry facility. Id. at 17–20. Moini began
by reciting his qualifications, moved on to discuss his accomplishments as Director of Mass
Spectrometry, and concluded with an explanation for the high turnover rate of staff in his lab. Id.
Moini followed this up on February 28, 2006, with a letter to Dr. Martin. Id. at 21. In this
letter, Moini objected to the inclusion of Dr. Brodbelt in any potential oversight committee because
she was the other participant in the 1990 sexual encounter with Dr. Laude, mentioned in Moini’s
August 2004 complaints to Dean Rankin and Dr. Martin. Id. Moini opined this would represent a
“conflict of interest” for Dr. Brodbelt. Id.
On July 11, 2006, Moini received a positive performance evaluation, noting continued
“superior performance with respect to the technical aspects of his job,” and improved performance
with respect to maintaining the Mass Spectrometry Facility. Defs.’ Mot. Summ. J. [#36], Att. 3 at
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26. The evaluation noted Moini’s improvement in his relationship with his staff, but observed a
continuing trend of high staff turnover, concluding, “there are indications that further progress is
needed.” Id.
After a draft of a Departmental Strategic Plan criticized the Mass Spectrometry Facility,
Moini wrote a letter to Dr. Martin. Defs.’ Mot. Summ. J. [#36], Att. 4 at 19. The October 3, 2007
letter, entitled “RE: Complaint Against Bias In the Department,” indicated Moini’s disagreement
with the criticisms in the draft Plan. Id. In the letter, Moini claimed the “mass spec section of the
Strategic plan has been orchestrated by [a] couple of faculty (including Dr. Brodbelt) with a long
history of animosity and discrimination against me.” Id. Moini continued, “[f]rom the time that I
witnessed their sexual relationship, these faculty members have attacked me in [sic] every chance
that they get.” Id.
Moini made formal internal complaints with the University’s Equal Opportunity Services on
October 17, 2007, December 12, 2007, and July 7, 2008. Defs.’ Mot. Summ. J. [#36], Att. 10 at
2–14; id., Att. 16 at 2–9; id., Atts. 20–21. After the Director of the Equal Opportunity Services’
investigation revealed no discrimination or retaliation, Moini filed formal complaints with the Equal
Employment Opportunity Commission on July 11, 2008, November 19, 2008, and January 22, 2009.
Id., Att. 6 at 5–8.
2.
Moini’s Timeline of Complaints Fails to Create an Inference of Retaliatory Motive
Moini states this timeline is evidence the adverse actions to which he was subject were
connected to his complaints, because “the same pattern and practice engaged in by Defendants in
2003, were used again in 2007.” Pl.’s Resp. [#42] at 8. This is unpersuasive for three reasons.
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First, the proposition Moini complained only in 2003 and 2007 is false. As outlined above,
Moini seems to have complained fairly regularly, starting on March 6, 2003, and continuing until
the present. Second, and related, the notion Moini received poor treatment whenever he complained
is also false. For instance, despite his complaints on both December 4, 2005, and February 28, 2006,
Moini’s July 2006 performance evaluation was positive. Third, even assuming arguendo Moini’s
contentions regarding timing are true, the Court has already noted the logical flaw in Moini’s
argument: correlation does not imply causation.
“The cases that accept mere temporal proximity between an employer’s knowledge of
protected activity and an adverse employment action as sufficient evidence of causality to establish
a prima facie case uniformly hold that the temporal proximity must be very close.” Clark Cnty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273 (2001) (internal quotation omitted). Here, the temporal
proximity between Moini’s complaints and Defendants’ adverse employment actions are generally
not very close and, as previously noted, there is no strong correlation between the complaints and
adverse actions.
It appears Moini has simply picked two years in which both: (1) he complained; and (2) he
suffered negative employment actions. From this, Moini asks the Court to conclude Defendants’
adverse employment actions were taken for retaliatory reasons. Because there is neither logical nor
factual support for Moini’s argument, the Court declines to do so.
Thus, the Court finds Moini has failed to provide sufficient evidence of retaliatory motive
to survive summary judgment on any of his retaliation claims. Nevertheless, the Court examines
each of Moini’s claims of discrimination and retaliation in turn.
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3.
Removal of Adjunct Professor Title
Moini fails to establish a prima facie case of discrimination or retaliation with respect to this
act. Additionally, he fails to rebut Defendants’ proffered non-discriminatory reasons for their action.
Consequently, Moini’s claims based on this act fail as a matter of law.
Initially, the Court notes its analysis of this claim is complicated somewhat by the apparent
lack of precision surrounding the exact title Moini held, versus the one he sought. On August 30,
2007, Moini sent a letter to Dr. Steven Martin, Chair of the Department of Chemistry and
Biochemistry, indicating his interest in applying for an “Adjunct Professor” position in the
Department. Defs. Mot. Summ. J. [#36], Att. 3 at 28. In the letter, Moini claims he already held the
title of “Adjunct Faculty” in the Department. Id. Obviously, this suggests “Adjunct Professor” and
“Adjunct Faculty” were two distinct positions in the Department.
Dr. Martin’s email reply on September 11, 2007, however, casts some doubt on this. Id. at
31. The subject of the email is “Letter regarding adjunct position,” and the first line states in part:
“I have received your letter regarding an Adjunct Faculty position.” Id. As noted above, however,
Moini indicated he already held the title of Adjunct Faculty, and was applying for the (presumably
different) position of Adjunct Professor. Later, explaining why Moini’s request was being denied,
Dr. Martin’s email reads: “First, as we aren’t seeking Adjunct Professors, there aren’t any positions
open for which you can apply.” Id. Dr. Martin’s email thus creates the impression the terms
“Adjunct Faculty,” “Adjunct Professor,” and the generic “adjunct position,” may have been
interchangeable within the Department.4
4
Even Moini is not consistent in his use of the terms. For instance, in a sworn declaration, he states, “my
Adjunct Professor title, as displayed on the department webpage, was removed.” Pl.’s Resp. [#42], Att. 8 at 2.
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However, the Court is required to view the facts in the light most favorable to Moini. As
Moini suggests he already held a position called Adjunct Faculty, and was seeking the separate
position of Adjunct Professor, the Court assumes they are two distinct positions.
a.
No Prima Facie Case
Nevertheless, Moini fails to establish a prima facie case of either discrimination or retaliation
based on this act. First, to the extent Moini complains about his not being hired into a separate
Adjunct Professor position, that claim is time-barred by this Court’s prior order, setting September
15, 2007, as the “cut-off” date for Moini’s claims. See Order [#20] at 18. As noted above, Martin
sent his email denying Moini’s application on September 11, 2007. Because this failure-to-hire
claim occurred outside the actionable time period, it is time-barred and must be dismissed.
Second, to the extent Moini is complaining about removal of an existing title, he has failed
to establish a prima facie case of either discrimination or retaliation. First, the Court notes it is
unclear from the record when Moini’s adjunct title was allegedly removed; thus, this claim may be
time-barred. Second, the Court has some doubt the removal of an adjunct title, unaccompanied by
a loss of pay, duties, or power, constitutes an adverse employment action in the context of either
discrimination or retaliation.
The Court does not base its conclusion on these points, however. Moini has failed to make
a prima facie case of discrimination because he has provided no evidence he was treated worse than
other similarly situated employees outside his protected groups. Specifically, the Court can find no
record evidence Moini’s adjunct title was stripped, while a similarly situated, younger or non-Iranian,
employee retained his or her adjunct title. Because Moini has failed to demonstrate he was treated
differently than similarly situated employees outside his protected classes, his discrimination claim
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fails.
Similarly, Moini fails to make a prima facie case of retaliation based on the removal of his
adjunct title. Moini has failed to provide any evidence Defendants took this action because he
engaged in protected activity. Even if Moini’s title was removed after he engaged in protected
activity—and, as the Court has noted above, the timing of the alleged removal is unclear from the
record—there is no evidence of a causal relationship between the two events. Thus, Moini has failed
to establish a prima facie case of retaliation for the alleged removal of his adjunct title.
b.
Failure to Rebut Defendants’ Legitimate, Non-Discriminatory Reasons
Even if Moini had made a prima facie case of discrimination or retaliation, Defendants are
still entitled to summary judgment. Defendants provide evidence of a legitimate, non-discriminatory
reason for the rejection of Moini’s application for Adjunct Professor, as well as for the removal of
Moini’s existing adjunct title, if any. Specifically, Professor Martin’s email to Moini states:
We aren’t able to accommodate your request for two reasons. First, as we aren’t
seeking Adjunct Professors, there aren’t any position open for which you can apply.
Secondly and most importantly, last spring we began an effort to scrutinize those who
held that title in our Department. A decision was made that we would (re)appoint
only those who held a faculty title at another institution of higher education as
adjunct faculty. As a result, several adjunct appointments were not renewed. We
realize the Department website does not accurately reflect the names of those who
hold the title but this will be addressed once our Department webmaster situation is
remedied.
Defs. Mot. Summ. J. [#36], Att. 3 at 31.
Moini offers no evidence to rebut Defendants’ legitimate, non-discriminatory reason.
Consequently, summary judgment must be granted in Defendants’ favor.
4.
Removal from “cmprof” Mailing List
Moini fails to make a prima facie case of either discrimination or retaliation based on this act,
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because it does not constitute an “adverse employment action” under either claim. Moreover, Moini
has failed to rebut Defendants’ legitimate, non-discriminatory reasons for removing him from the
email mailing list.
a.
No Prima Facie Case
Removal from an email mailing list is clearly not the sort of “ultimate employment decision”
required for an act to be an adverse employment action under a Title VII discrimination claim. Nor
is it an act sufficiently adverse that it “well might have dissuaded a reasonable worker from making
or supporting a charge of discrimination.” Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006).
This is especially true in light of the legitimate, non-discriminatory reason Defendants
provided for Moini’s removal from the “cmprof” email mailing list. Defendants provide an email,
apparently a response to one from Moini asking why he had been removed from the list, which reads
in part:
Yesterday I undertook a general cleanup of the various listserves. I was surprised at
who had been added to the cmprof listerve [sic] over the years. As there are
communications that go out to that list that are intended only for voting faculty, I
removed a number of people including a few other lecturers and several staff. I did
ensure that everybody remained on, or was added to, the appropriate list (either
cmlect or cmadm).
Defs. Mot. Summ. J. [#36], Att. 3 at 32. If this evidence is true—and Moini has provided no facts
to dispute it—the “adverse employment action” at issue is Moini was moved from a more privileged
email mailing list to a less privileged one. While this might be annoying or insulting, it is neither
an ultimate employment decision, nor an act which would dissuade even a faint-hearted employee
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from making a complaint of discrimination.5 Accordingly, Moini has failed to establish a prima facie
case of either discrimination or retaliation.
b.
Failure to Rebut Defendants’ Legitimate, Non-Discriminatory Reasons
Although Moini has failed to establish a prima facie case, the Court considers Defendants’
evidence of a legitimate and non-discriminatory reason for removing Moini from the “cmprof”
mailing list. Specifically, Defendants provide evidence Moini was removed from the list during an
administrative cleanup because he did not meet the criteria of those supposed to be on the list. Moini
provides no evidence to rebut this reason. Thus, for this additional reason, Defendants are entitled
to summary judgment on Moini’s discrimination and retaliation claims based on his removal from
the “cmprof” email mailing list.
5.
2008 Reprimand Letter
Again, Moini fails both to establish a prima facie case and to rebut Defendants’ proffered
legitimate reasons for reprimanding him. Accordingly, Defendants are entitled to summary
judgment.
On February 18, 2008, Moini received a letter from Dr. Quy with the subject, “Letter of
Reprimand.” Defs.’ Mot. Summ. J. [#36], Att. 5 at 25. The letter begins: “As we discussed, your
failure to cooperate with me and to follow instructions is unacceptable.” Id. The letter goes on to
state Moini’s “performance regarding the management of personnel and resources of the Mass
Spectrometry Facility (MSF) is less than satisfactory and requires improvement.” Id. The letter then
purports to recount the events of Moini’s 2007 Annual Performance Evaluation, in which Moini and
5
The Court notes in passing the overwhelming evidence in this case demonstrates Moini was anything but fainthearted when it came to complaining about what he perceived as discrimination or retaliation.
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Dr. Quy allegedly discussed “the need to change procedures sufficiently to ensure the department’s
equipment [was] being used to its full potential across the university community.” Id.
The letter continues, describing an alleged conversation between Moini and Dr. Martin, in
which Dr. Martin gave Moini “specific instructions to change the MSF reporting procedures in order
to bill customers by the individual machine used for sample analysis rather than the type of analysis
procedure alone.” Id. The letter states Moini made no progress on this task for three months, so Dr.
Quy repeated his instructions to Moini during a meeting on January 29, 2008. Id. The letter
complains Moini’s lack of responsiveness “delayed an initiative by us to increase and broaden MSF
operations and utilization,” and concludes by scheduling a meeting in “early March” to discuss
Moini’s progress. Id. at 26.
a.
No Prima Facie Case
Again, Moini has failed to demonstrate a prima facie case of either discrimination or
retaliation. With respect to his discrimination claim, Moini has provided no evidence a similarly
situated employee—which in this case means an employee who was perceived by his employer as
repeatedly failing to follow instructions from his supervisors—from outside his protected classes was
treated differently. With respect to his retaliation claim, Moini has provided no evidence this
reprimand letter was issued because he engaged in protected activity. Consequently, Moini has
failed to state a prima facie case.
b.
Failure to Rebut Defendants’ Legitimate, Non-Discriminatory Reasons
Additionally, Moini has failed to provide evidence rebutting Defendants’ legitimate, non-
discriminatory reasons for reprimanding him. Moini has provided evidence he disagrees with the
decision to reprimand him, and even disagrees with the underlying factual bases for the reprimand,
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but this is insufficient to create a genuine dispute of material fact about whether Defendants’ reasons
were pretextual. See LeMaire v. La. Dep’t of Transp. and Dev., 480 F.3d 383, 391 (5th Cir. 2007)
(“Simply disputing the underlying facts of an employer’s decision is not sufficient to create an issue
of pretext.”).
Because Moini has failed to provide evidence rebutting Defendants’ non-
discriminatory reason for reprimanding him, Defendants are entitled to summary judgment on this
claim.
6.
2008 “Shop Survey”
Once again, Moini fails both to make a prima facie case of discrimination or retaliation, or
to rebut Defendants’ proffered non-discriminatory reasons for their actions.
Consequently,
Defendants are entitled to summary judgment on this claim.
According to the undisputed record evidence, in spring 2008 the Department of Chemistry
and Biochemistry conducted a “shop survey” of all Department service centers, including Moini’s
Mass Spectrometry lab. Defs.’ Mot. Summ. J. [#36], Att. 7 at 3, 5–13. Although survey responses
from both faculty and non-faculty rated Moini’s facility between “Fair” and “Good,” the facility was
the lowest scoring of the seven departmental services. Id. at 5.
More significantly, however, survey comments indicate some users of the Mass Spectrometry
facility had concerns with the facility generally, and Moini in particular. For instance, some of the
negative faculty comments include: “Time for general revamping of personnel and/or procedures”;
“The director of this facility needs to go”; “One cannot rely on this facility to help in the
identification of unknowns”; “Replace the person in charge”; and “Get rid of Mehdi.” Id.
The faculty responses were not uniformly negative, however, and also included some praise
for Moini and the facility: “Dr. Moini is always very helpful and things seem to get done well once
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he becomes personally involved in a particular problem. Unfortunately, this isn’t possible as a
routine solution”; “Mehdi seems to be very helpful with my students”; and “We only rarely use this
facility. The few times we have, we had good service.” Id.
Similarly, most non-faculty comments were negative—“Get new staff. The data is all over
the place and one always has to question the results”; “Improve the timeliness! And consistency of
qualified staff”; “It is hard to submit air sensitive samples and expect the results to come back
accurate”; “Moini does a very poor job with the facility”; “Our lab no longer uses these facilities
because of bad experiences in the past”; “The facility needs to work more hand-in-hand with the
users in order to get this facility up to par to deliver the necessary results”; “The staff seems highly
unwilling to help under a variety of circumstances”; and “This service is essentially hit or
miss”—while a small number were more positive—“I have no problem with the HRMS facility.
However my experience with the LRMS facility is not generally as positive effective [sic]”; “The
mass spec department is well equipped and provides access to most instruments required”; “The
staffs’ helpfulness is generally good . . . they are good at ‘fire-fighting,’ but leadership seems poor”;
and “Mehdi can be helpful and generally takes an interest in your results.” Id. at 10.
a.
No Prima Facie Case
Moini has failed to make a prima facie case of discrimination or retaliation for three reasons.
First, a departmental survey is not an adverse employment action within the context of either a
discrimination or a retaliation claim. Second, with respect to his discrimination claim, Moini has
failed to provide evidence a similarly situated employee from outside his protected classes was
treated differently. Finally, with respect to his retaliation claim, Moini has failed to provide evidence
the shop survey, or the negative results reflected therein, were caused by Moini’s involvement in
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protected activity. Accordingly, Defendants are entitled to summary judgment on this claim.
7.
March 2008 Failure to Hire
Moini’s claims based on Defendants’ failure to hire him for a tenure-track position in 2008
fail as a matter of law.
On October 12, 2007, Moini applied for a tenure-track faculty position in the Department.
Defs.’ Mot. Summ. J. [#36], Att. 8 at 9. He also provided a list of three references from outside the
University, id. at 20, but there is no evidence he submitted any letters of recommendation. On March
25, 2008, Moini received a rejection email from Dr. Martin. Id. at 35. According to Dr. Martin’s
affidavit, the person ultimately chosen for the position was Dr. Lauren Webb. Id. at 3.
Defendants concede Moini has established a prima facie case for discrimination based on
their failure to hire him, because Dr. Webb is both younger than Moini, and not Iranian. The Court
agrees Moini has established a prima facie case of discrimination on this claim. To the extent Moini
is basing a retaliation claim on this act, however, he has failed to establish a prima facie case because
he has provided no evidence Defendants’ choice to hire Dr. Webb instead of him was motivated by
his involvement in protected activities.
a.
Failure to Rebut Defendants’ Legitimate, Non-Discriminatory Reasons
Moini has failed to rebut Defendants’ non-discriminatory reasons for their decision to hire
Dr. Webb instead of him. Defendants offer two reasons for their decision to hire Dr. Webb instead
of Moini: (1) Moini’s failure to provide letters of recommendation from his external references made
his application incomplete, such that the faculty search committee did not consider Moini’s
application; and (2) Dr. Webb has more impressive academic credentials than Moini. Defs.’ Mot.
Summ. J. [#36], Att. 8 at 3.
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In response, Moini claims: “Plaintiff’s file was not incomplete; the prior year’s reference
letters were valid and Plaintiff was never advised otherwise, nor advised to submit any further
documentation.” Pl.’s Resp. [#42] at 13. However, Moini provides no evidence to support this
claim. Even if he had, however, it would not be sufficient to rebut Defendants’ proffered nondiscriminatory reason for not hiring him. Title VII allows an employer’s application review
procedure to be inefficient, unreasonable, or even downright stupid, so long as it is not illegally
discriminatory. Just because Defendants’ selection process may have been illogical, does not mean
it was illegal.
Moini further disputes the claim Dr. Webb’s academic qualifications were superior to his
own. However, as noted above, disputing the facts underlying an employer’s decision is not
sufficient to demonstrate pretext. Moreover, the record evidence shows Moini and Dr. Webb’s
qualifications were sufficiently different that Defendants’ may have legitimately preferred Dr.
Webb’s skill set over Moini’s. Again, the Court’s job is not to second-guess Defendants’ strategic
employment decisions; it is simply to ensure Defendants are not illegally discriminating or retaliating
against Moini.
Moini has failed to rebut the non-discriminatory reasons proffered by Defendants.
Consequently, Defendants are entitled to summary judgment on this claim.
8.
Removal of Lecturer Title
Moini has failed to establish a prima facie case for discrimination or retaliation under this
claim. Moreover, he has failed to rebut the legitimate, non-discriminatory reason proffered by
Defendants. Consequently, Defendants are entitled to summary judgment on these claims.
According to evidence provided by Defendants, Moini held the annually appointed position
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of Lecturer from 2002 to 2008. Defs.’ Mot. Summ. J. [#36], Att. 7 at 3. A Lecturer appointment
expires each year on May 31, but a (technically former) Lecturer may continue to teach classes and
assign grades throughout the summer without an additional appointment. Id.
a.
No Prima Facie Case
Defendants provide evidence Moini’s Lecturer title was not removed, but simply expired and
was not renewed following his termination.
Id.
Moini provides no evidence Defendants
independently stripped him of his Lecturer title. Thus, to the extent Moini intends to base his
discrimination or retaliation claims on such an independent action, he has failed to demonstrate any
adverse employment action actually occurred. Therefore, Moini has necessarily also failed to
demonstrate he was treated differently than a similarly situated employee outside his protected
groups; or that the Defendants’ purported action was motivated by Moini’s protected activities.
To the extent Moini intends to complain about the non-renewal of his Lecturer title, it is
simply a consequence of the non-renewal of his employment generally, and will be analyzed under
that claim.
Because Moini has failed to establish a prima facie case of discrimination or retaliation,
Defendants are entitled to summary judgment on this claim.
9.
2008 Non-Renewal As Senior Research Scientist and Director of Mass Spectrometry
Although it finds the issue somewhat close, the Court concludes Moini has failed to establish
a prima facie case of discrimination based on Defendants’ non-renewal of his appointment as a
Senior Research Scientist and Director of Mass Spectrometry. Moreover, because Moini has failed
to rebut the legitimate, non-discriminatory reason proffered by Defendants for Moini’s non-renewal,
Defendants are entitled to summary judgment on this claim.
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On July 1, 2008, Moini received a memorandum from Dr. Richard Quy entitled, “NonRenewal of Appointment as Sr. Research Scientist.” Defs.’ Mot. Summ. J. [#36], Att. 6 at 2. The
letter apprised Moini his appointments would not be renewed “for the fiscal year beginning
September 1, 2008.” Id. The letter explains:
This action is being taken because of the lack of acceptable improvement in your
performance in the areas of hiring and maintaining an effective staff, obtaining
research grants to fund your independent research, keeping the chairman’s office
informed on material issues relating to the use of your time and cost overruns,
optimizing the use of university mass spectrometry equipment, and promoting
collaborative research and MS service among the department faculty and among the
faculties of other departments and ORU’s. These performance problems have been
discussed with you over the course of the last several years. Unacceptable
performance raises the costs of operation, causes the underutilization of university
equipment, and impedes research progress among the research faculty and staff.
Id. Subsequently, Defendants issued a second non-renewal letter which did not contain the above
paragraph. Id. at 3–4.
a.
No Prima Facie Case
The only disputed element in Moini’s prima facie discrimination case is whether he was
replaced by somebody outside his protected class. Defendants argue Moini has not satisfied this
element because his immediate successor, Dr. Rambod Daneshfar, was also Iranian. Moini
disagrees, pointing out Dr. Daneshfar was only an interim replacement, and Moini’s permanent
replacement, Dr. Karin Keller, was both younger and not Iranian. Moini suggests temporarily
replacing Moini with another Iranian was a tactic used as “a disguise to the act of discrimination.”
Pl.’s Resp. [#42] at 4. Because there is no evidence supporting this argument, the Court rejects it.
Dr. Daneshfar was appointed as interim director on July 2, 2008. Defs.’ Mot. Summ. J.
[#36], Att. 7 at 23. Dr. Keller was hired on or about December 18, 2008. Id., Att. 6 at 8. Though
it is not impossible, Moini has provided no direct evidence suggesting Dr. Daneshfar’s appointment
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was merely a ruse to disguise Defendants’ intentional discrimination. And, given Dr. Daneshfar
served as Director of Mass Spectrometry for approximately five and a half months, the circumstantial
evidence does not support Moini’s argument.
The Court agrees an employer cannot “game the system” and categorically avoid Title VII
liability simply by firing a person and temporarily replacing him or her with a token member of the
same protected class. In each case, courts must analyze the evidence in the light of common sense
and determine whether, under the circumstances of that particular case, a plaintiff has established
a prima facie case. Here, Moini has provided insufficient evidence to create a genuine dispute of
material fact whether his replacement by Dr. Daneshfar was merely a ruse to hide discrimination.
Accordingly, Moini has failed to establish a prima facie case of discrimination.
Similarly, Moini has failed to establish a prima facie case of retaliation. Specifically, Moini
has not demonstrated a genuine dispute of material fact about whether his non-renewal was
motivated by his protected activity.
b.
Failure to Rebut Defendants’ Legitimate, Non-Discriminatory Reasons
Moini has failed to provide evidence rebutting Defendants’ legitimate, non-discriminatory
reasons for his non-renewal. Accordingly, Defendants are entitled to summary judgment on this
issue.
The Court has already recited much of the evidence supporting Defendants’ proffered reason
why Moini’s appointment as Senior Research Scientist and Director of Mass Spectrometry was not
renewed: his 2008 reprimand for failure to follow the directions of his superiors; the Spring 2008
“shop survey”; and the letter of non-renewal itself. Defendants also point to Moini’s October 18,
2007 performance evaluation, which notes many of the same concerns. Defs.’ Mot. Summ. J. [#36],
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Att. 5 at 2–6. In short, Defendants have provided ample evidence they deemed Moini’s performance
unacceptable—which is, of course, a legitimate reason to terminate an employee.
By contrast, Moini offers insufficient evidence of pretext. Moini points out his negative
evaluation came after he made some complaints of discrimination. Moini further notes his
disagreement with his evaluation, his reprimand, and the shop survey. With respect to Moini’s
timing argument, it is, without more, simply not sufficient to demonstrate pretext. Further, as has
already been noted, Moini’s factual disputes regarding his evaluation, reprimand, and the shop
survey are insufficient to establish pretext.
It is not uncommon for an employee to disagree with an employer’s assessment of his or her
performance; standing alone, however, it is not evidence of discrimination. Nor does Moini’s post
hoc ergo propter hoc argument hold water under these circumstances. The undisputed record
evidence demonstrates Defendants perceived Moini’s job performance as unacceptable. Defendants
may have been wrong in their perception, had unreasonable standards, or exercised poor judgment
in not renewing Moini’s appointment. However, those things are not actionable under Title VII.
Absent evidence of discrimination on the basis of Moini’s age or national origin, or of retaliation for
Moini’s protected activities—which evidence is wholly lacking—this Court must grant summary
judgment in favor of Defendants on this claim.
10.
Replacement As Director
Because Moini’s non-renewal was the sine qua non of his replacement by both Dr. Daneshfar
and Dr. Keller, these acts are properly considered part of Moini’s non-renewal claim. However, to
the extent Moini urges them as independent claims, he has failed to establish a prima facie case for
discrimination or retaliation.
-25-
a.
No Prima Facie Case
As an initial matter, the act of being replaced is not, divorced from the decision to terminate,
an adverse employment action. By the time one is being replaced, the ultimate employment decision
has presumably already been made; moreover, a reasonable employee would not be dissuaded from
engaging in protected activity by the threat his or her vacated position would be filled by another
person, regardless of whether the replacement was within or outside a protected class. Further,
Moini has failed to provide evidence his being replaced by a particular person was motivated by his
national origin, his age, or his engaging in protected activity.
Because Moini has failed to establish a prima facie case of discrimination or retaliation,
Defendants are entitled to summary judgment on this claim.
11.
Denial of Faculty Grievance Procedure
Moini has failed to establish a prima facie case of discrimination or retaliation regarding this
claim. Moreover, Moini has failed to provide evidence rebutting Defendants’ non-discriminatory
reason for denying Moini access to the faculty grievance procedure. Accordingly, Defendants are
entitled to summary judgment on this claim.
a.
No Prima Facie Case
Moini has failed to establish a prima facie case of discrimination or retaliation based on this
claim. First, absent evidence not before this Court, denial of a particular (perhaps inappropriate)
grievance procedure does not appear to be an ultimate employment decision. Likewise, there is no
evidence denial of a particular grievance procedure would deter a reasonable employee from
engaging in protected activity. The Court assumes there is some substantive difference between the
staff grievance procedure Moini received, and the faculty grievance procedure he sought, but the
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Court has no evidence of what that difference is. Without some evidence on this point, the Court
concludes Moini has failed to demonstrate this is an adverse employment action in the context of
either a discrimination or a retaliation claim.
Moreover, Moini has failed to demonstrate he was treated differently than others outside his
protected group with respect to the grievance procedure he received, or that his being denied the
faculty grievance procedure was motivated by his engaging in protected activity. Thus, his prima
facie case fails for this reason as well.
b.
Failure to Rebut Defendants’ Legitimate, Non-Discriminatory Reasons
Additionally, Moini has failed to rebut Defendants’ non-discriminatory reasons for denying
him the faculty grievance procedure. Defendants have offered evidence Moini was denied the
faculty grievance procedure in accordance with University of Texas System’s Board of Regents’
Rule 31001, Part 1, Section 3, which states in part: “Administrative and academic (faculty) titles,
duties, and pay rates are distinct and severable. Departure or removal from an administrative
position does not impair the individual’s rights and responsibilities as a faculty member.” Defs.’
Reply [#44], Att. 4 at 6. An email dated September 11, 2008, purportedly from Steven W. Leslie,
cites that rule and concludes: “Accordingly, someone who holds both titles may only use faculty
procedures to deal with issues that arise out of their faculty appointment and must use staff
procedures to deal with issues arising out of their staff appointment.” Id.
The Court notes while Leslie’s conclusion is not inconsistent with the text of Rule 31001,
it is certainly not compelled by it. However, Leslie’s interpretation is the only evidence before the
Court. In the absence of any contradictory evidence from Moini, the Court credits Leslie’s
interpretation. Such a policy is a legitimate, non-discriminatory reason for denying Moini access to
-27-
the faculty grievance procedure to challenge removal of a staff title.
Moini has provided no evidence to rebut Defendants’ proffered reasons. Accordingly,
Defendants are entitled to summary judgment on these claims.
12.
Negative Job References
Moini has failed to establish a prima facie case of discrimination or retaliation for this act.
Accordingly, Defendants are entitled to summary judgment on these claims.
Moini claims Defendants provided him with negative job references. See, e.g., Pl.’s Resp.
[#42] at 3 (listing “Providing negative job references for Plaintiff” as a discriminatory and retaliatory
act). However, Moini cites to no supporting record evidence in his response to Defendants’ motion
for summary judgment, even though Defendants specifically challenge the factual basis of Moini’s
claim. Without any evidence Defendants provided negative job references for Moini, this claim
cannot survive. Defendants are therefore entitled to summary judgment on this claim.
The Court briefly notes, even if Moini had provided evidence of the existence of negative
job references by Defendants, he still would not have established a prima facie case of discrimination
or retaliation. First, negative references do not constitute adverse employment actions within the
meaning of a Title VII discrimination claim. Second, Moini has the typical causation problems—no
evidence other similarly situated employees from outside his protected classes were treated
differently; and no evidence the negative references were motivated by his protected activity.
Accordingly, Defendants are entitled to summary judgment on these bases as well.
Conclusion
The record in this case leaves no question in the Court’s mind Moini felt he was receiving
unfair treatment from Defendants. However, Moini has failed to provide objective evidence he was
-28-
being treated differently than similarly situated employees outside his protected classes. Equally
fatal to his claims, Moini has failed to provide evidence any unfair treatment he received was based
on his age, national origin, or retaliation for his protected activities. Moreover, an examination of
the record demonstrates Defendants had many plausible, legitimate reasons not to renew Moini’s
appointment: his apparent inability to manage and retain his staff; his undeniable conflicts with
coworkers; his seemingly paranoid belief he was being followed and secretly monitored; or his
difficulty taking and following directions from management. In light of the record evidence, no
reasonable juror could conclude Moini’s non-renewal (or Defendants’ other purported adverse
employment actions) was motivated by an illegal purpose, rather than Moini’s clear inability to work
harmoniously within the Department. Therefore, for the foregoing reasons, the Court GRANTS
Defendants’ motion for summary judgment.
Accordingly,
IT IS ORDERED that Defendants’ Motion for Summary Judgment [#36] is
GRANTED.
SIGNED this the 1st day of June 2011.
____________________________________
SAM SPARKS
UNITED STATES DISTRICT JUDGE
180 sj ord may31 mjh.wpd
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