Labor & Employment Law Daily Wrap Up, DISCRIMINATION—5th Cir.: Shortening, non-renewal of Iranian female professor’s contract did not violate Title VII, (Jan 10, 2025)

By Marjorie Johnson, J.D.

Her failure to provide specific details relating to the background and job responsibilities of an Indian male instructor she claimed was treated better and replaced her doomed her claims.

A former non-tenure-track Texas A&M professor could not prove that the university acted with a discriminatory motive when it shortened and then failed to renew her employment contract because she could not demonstrate that a recently hired male Indian lecturer either replaced her or was similarly situated. Affirming dismissal of her Title VII lawsuit on summary judgment, the Fifth Circuit also declined to reinstate her retaliation claim because the temporal proximity was not enough by itself to show pretext and the university’s hiring of the Indian male “at an unspecified time for an unspecified role” did not constitute “significant record evidence” supporting her claim (Shahrashoob v. Texas A&M University, No. 23-20618 (5th Cir. Jan. 8, 2025)).

Non-tenure-track position. In 2018, the university hired the professor for a non-tenure-track position in its department of chemical engineering. She was first employed as a lecturer and then as an instructional assistant professor. The lecturer appointment did not require a Ph.D., but it did require her to teach chemical engineering and other classes as assigned by the department head.

Renewable contract. During her first academic appointment, the university assisted the professor with her permanent residency application. As a result, in the spring of 2019, it reclassified her as an instructional assistant professor, renewable for three years but contingent on her satisfactory performance and the availability of funds. This position—unlike that of lecturer—required a Ph.D. But like the lecturer position, this appointment was for a nine-month term, was non-tenure-track, and required her to perform pedagogical research or service activities.

As part of the process in helping her obtain permanent residency, the university filed a prevailing wage request and learned that she needed a higher wage for her residency application. As a result, in January 2020, it offered her another instructional assistant professor appointment (for another nine months) with a higher salary, which was set to run from September 2020 to May 2021. The position again required that she perform pedagogical research in addition to teaching and was also contingent on her satisfactory performance and continued funding for the position.

EEOC charge. Meanwhile, during her Spring 2020 term, she complained internally that the university had discriminated against her by requiring her to work out of a cubicle rather than an office. Although she was eventually moved to an office, she felt the university continued to treat her unfairly by paying her a lower salary, requiring her to teach more courses than her peers, and giving her an unsatisfactory workspace. On June 13, 2020, she filed an EEOC charge alleging sex and national origin discrimination.

Shortened appointment. That August, the university offered her an instructional assistant professor appointment for a shortened four-month term (as opposed to her prior nine-month terms). The offer letter specified that the appointment ran from September 2020 to January 2021. Sometime thereafter, the university hired an Indian man as an instructor in the department.

Second EEOC charge. On September 22, she filed a second EEOC charge citing the shortened term and other reasons she believed the university was discriminating against her. In particular, she alleged that the department had hired the Indian man to replace her and asked her to train him. She also alleged that its stated budgetary constraints were a pretext to discriminate against her and pointed to the Indian instructor as her replacement.

Nonrenewal. Her academic appointment ended at the end of her four-and-a-half-month term (in January 2021), as set forth in the August offer letter. The university also shortened the term of another professor to four-and-a-half months, but that spring it also hired two tenure-track faculty.

Lawsuit. She sued the university and other defendants alleging myriad claims. She voluntarily dismissed all claims except her Title VII discrimination and retaliation claims against the university, which the court eventually dismissed on summary judgment.

Forfeited comparator/replacement argument. The professor first argued that the district court erred in ruling that she could not establish a prima facie case of discrimination. Significantly, she had argued below that the professor whose contract was also shortened was treated more favorably since that individual was either not terminated or was rehired, but the district court rejected her argument since the purported comparator was not similarly situated. On appeal, she argued for the first time that the university’s hiring of the Indian male instructor created a triable issue about whether she was replaced by someone outside her protected group and treated less favorably than someone similarly situated. The Fifth Circuit ruled that she forfeited these replacement and comparator arguments because she failed to properly raise them in her summary judgment briefing. Simply attaching her EEOC charge was not enough.

Fails on merits. But even if she had not forfeited her arguments, she still could not make out her prima facie case of discrimination. First, she could not show that he replaced her since there was no evidence reflecting what position he held, what classes he taught, whether he was required to conduct pedagogical research, whether he had a Ph.D., whether he was eligible to be an instructional assistant professor, whether she trained him, or any other information about his job responsibilities. Second, she could not show that he was similarly situated to her since the record lacked evidence concerning his job title, his responsibilities, his supervisor, who determined his employment status, or any other attributes that would show he was similarly situated.

Retaliation claim fails at pretext stage. She also could not prove that the university’s proffered reasons for its actions—budgetary constraints and teaching needs—were pretext for retaliation. Though she pointed to the temporal proximity plus the hiring of the Indian male instructor, “in the end, her argument does not chin the bar,” explained the Fifth Circuit. “We have recognized that a plaintiff can show pretext through temporal proximity plus significant record evidence,” and the university’s hiring of the Indian male “at an unspecified time for an unspecified role” did not suffice—particularly without any evidence that he had the same job duties, same title, same work project, or same supervisor.

The case is No. 23-20618.

Judge: Morales, D.

Attorneys: Timothy Andrew Hootman (Law Offices of Timothy Andrew Hootman) for Zahra Shahrashoob. Eric Scott Abels, Office of the Texas Attorney General, for Texas A&M University.

Companies: Texas A&M University

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