Hamilton v. Texas Department of Transportation , 85 F. App'x 8 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 6, 2004
Charles R. Fulbruge III
Clerk
No. 03-20362
TYRONE HAMILTON
Plaintiff - Appellant
v.
TEXAS DEPARTMENT OF TRANSPORTATION
Defendant - Appellee
Appeals from the United States District Court
for the Southern District of Texas
No. H-01-CV-3884
Before KING, Chief Judge, and JONES and SMITH, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Tyrone Hamilton appeals the magistrate
judge’s grant of summary judgment to Defendant-Appellee Texas
Department of Transportation (“TxDOT”) on his Title VII
retaliation claims. For the following reasons, we AFFIRM.
I. BACKGROUND
In this lawsuit, Hamilton, an African-American man, claims
that he was both demoted and denied a promotion in retaliation
for previously filing a Title VII employment discrimination
*
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that this opinion should not be published and is not precedent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.
lawsuit against his employer, TxDOT. Hamilton alleged race
discrimination in his first complaint against TxDOT, filed with
the Equal Employment Opportunity Commission (EEOC) in January
1998, after TxDOT chose to promote a white employee––rather than
Hamilton––to a supervisory position. Later, TxDOT removed the
white employee from this position and competitively posted the
job opening. Hamilton submitted his application but did not
complain when TxDOT chose instead to hire Sergio Rodriguez, a
Hispanic man. Hamilton did, however, file suit against TxDOT in
June 1999 alleging, inter alia, that TxDOT’s failure to promote
him in January 1998 was based on racial animus. Ultimately, the
district court granted summary judgment to TxDOT in this first
lawsuit on May 11, 2001. A panel of this court affirmed the
district court’s judgment in March 2002, agreeing that Hamilton
had failed to demonstrate that he was qualified to receive the
promotion in question. Hamilton v. Tex. Dep’t of Transp., No.
01-20628 (5th Cir. March 19, 2002).
Hamilton claims that TxDOT unlawfully retaliated against him
for filing the first Title VII lawsuit by subjecting him to at
least two more adverse employment actions, which form the basis
of second Title VII lawsuit.1 See 42 U.S.C. § 2000e-3(a) (2000).
1
Initially, Hamilton alleged eleven incidents of
retaliatory discrimination in the instant lawsuit. On September
3, 2002, however, the magistrate judge recommended granting
summary judgment to TxDOT on most of these claims. Hamilton has
not appealed this order and, as explained in the text, he asserts
only two instances of retaliatory discrimination in the present
-2-
First, Hamilton contends that TxDOT demoted him in September
2001, by changing his job responsibility level from “lead worker”
to “individual worker.” Second, Hamilton asserts that TxDOT
denied his request for a career-ladder promotion in May 2001
based on his decision to appeal for a new trial in his first
Title VII lawsuit.
After the parties consented to proceedings before the
magistrate judge and engaged in limited discovery, TxDOT moved
for summary judgment. On September 3, 2002, the magistrate judge
found that Hamilton had not exhausted his administrative remedies
with regard to the demotion claim and recommended granting
summary judgment to TxDOT. However, the magistrate judge
recommended denying TxDOT’s motion for summary judgment on the
promotion claim. The district court adopted the magistrate
judge’s recommendations in full, but granted leave both: (1) for
Hamilton to amend his complaint to plead administrative
exhaustion of the demotion claim and (2) for TxDOT to file a
second motion for summary judgment on both claims. The parties
then consented to trial by the magistrate judge under 28 U.S.C.
§ 636(c). On March 19, 2003––after Hamilton amended his
complaint and TxDOT made a second motion for summary judgment–-
the magistrate judge granted TxDot’s motion and entered a final
judgment in its favor. Hamilton timely appealed the decision to
appeal.
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this court.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo, applying the same standard as the district court. Fierros
v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir. 2001).
Summary judgment is proper when the entire record, viewed in the
light most favorable to the non-moving party, demonstrates no
genuine issue of material fact and where the moving party is
entitled to judgment as a matter of law. Blow v. City of San
Antonio, 236 F.3d 293, 296 (5th Cir. 2001); see also FED. R. CIV.
P. 56(c). Although in our review of the record we must draw all
reasonable inferences in favor of the nonmoving party, Fierros,
274 F.3d at 190, “[t]he moving party is entitled to a judgment as
a matter of law [if] the nonmoving party has failed to make a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks
omitted). Moreover, we have stated that the nonmoving party does
not demonstrate the existence of a genuine issue of fact (and
does not thereby avoid summary judgment) by asserting “some
metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc) (citations and internal
-4-
quotation marks omitted).
III. TITLE VII RETALIATION CLAIMS
A. Reclassifying Hamilton from a “lead worker” to an
“individual worker”
To state a claim of retaliatory discrimination under 42
U.S.C. § 2000e-3(a), Hamilton must prove that (1) he engaged in a
protected activity, (2) he was subjected to an adverse employment
action, and (3) a causal connection existed between his
participation in the protected activity and the adverse
employment action. See Fabela v. Socorro Indep. Sch. Dist., 329
F.3d 409, 414 (5th Cir. 2003). Hamilton’s first claim alleges
that TxDOT retaliated against him for filing the first Title VII
lawsuit by changing his job responsibility level from “lead
worker” to “individual worker” in September 2001. The first
element of the prima facie case for this claim is satisfied
because, when he filed a lawsuit under Title VII, even an
unsuccessful lawsuit, Hamilton engaged in a “protected activity.”
See 42 U.S.C. § 2000e-3(a) (making it unlawful for an employer to
retaliate against an employee “because he has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing” under Title VII).
The magistrate judge awarded summary judgment to TxDOT on
this claim, however, after finding TxDOT’s decision to reclassify
Hamilton from a “lead worker” to an “individual worker” does not
qualify as an “adverse employment action.” We agree. In Dollis,
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we explained that the retaliation provision of Title VII “was
designed to address ultimate employment decisions,” for example,
“hiring, granting leave, discharging, promoting, and
compensating.” 77 F.3d 777, 781-82 (5th Cir. 1995) (emphasis
added) (citation omitted). Demotions, to the extent that they
“affect job duties, compensation, or benefits” have also been
considered ultimate employment decisions. Banks v. E. Baton
Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003)
(internal quotation marks omitted). However, we have explained
that an employee has not satisfied the second element of his
prima facie case under § 2000e-3(a) if he alleges only that he
suffered a negative employment action “that arguably might have
some tangential effect upon [future] ultimate decisions.”
Dollis, 77 F.3d at 781-82; see also Mattern v. Eastman Kodak Co.,
104 F.3d 702, 708 (5th Cir. 1997) (discussing the genesis of this
rule). Therefore, we have repeatedly held that an employment
action that limits an employee’s future opportunities for
promotion, but does not itself affect the employee’s job duties,
compensation, or benefits, does not qualify as an adverse
employment action. Banks, 320 F.3d at 575; accord Walker v.
Thompson, 214 F.3d 615, 629 (5th Cir. 2000) (stating that an
employer’s decision to remove the employee’s major account from
her after she filed a complaint with the EEOC did not qualify as
an adverse employment action, even though the employee’s chances
of advancement were decreased); Dollis, 77 F.3d at 782 (holding
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that employer’s refusals either to consider whether the plaintiff
deserved a promotion or to provide the employee with training
opportunities, thereby decreasing future promotion opportunities,
were not ultimate employment decisions).
Our review of the summary judgment record reveals that
Hamilton’s altered job responsibility level, although possibly
decreasing his likelihood of receiving future job promotions, was
not the result of an adverse employment action. Neither party
disputes that Hamilton’s duties, benefits, and compensation did
not change in September 2001 when his position was reclassified
as that of an “individual worker.” Instead, TxDOT’s unchallenged
evidence demonstrates that this action was the last in a series
of statewide job reclassification steps taken by TxDOT. First,
in July 1998 TxDOT altered the “state titles”2 of many of its
engineering positions in an effort to match more closely the
prevailing market wages for similarly qualified engineers. As a
result, all TxDOT employees previously classified as “Engineering
Specialist I”–-including Hamilton–-were promoted to the state
title, “Engineering Specialist II,” and received a pay increase.
Then in February 2001, all TxDOT employees in Hamilton’s title,
“Engineering Specialist II” were promoted to state title
“Engineering Specialist IV”--a “lead worker” position--and they
2
A TxDOT employee has two job titles: a business or
functional title, which is used to describe the employee’s job
duties and responsibilities, as well as a “state title,” which is
used to determine the employee’s pay rate.
-7-
received a second raise in salary. Moreover Hamilton does not
dispute TxDOT’s evidence that it attempted to readjust its
supervisor-to-subordinate ratios over the following months to
meet state goals. As part of this review, TxDOT decided that the
duties and responsibilities of the “Engineering Specialist IV”
position were not those of a “lead worker.” Thus, it was
reclassified as an “individual worker” position in September
2001.3
Hamilton’s only complaint with this process stems from his
belief that he was actually performing the duties of a supervisor
when TxDOT decided that he should no longer be classified as a
“lead worker.” Without the official status of “lead worker,”
Hamilton contends, he will no longer be eligible for management
training courses and he will have difficulty receiving future
promotions within TxDOT. Although we assume that Hamilton’s
concerns are valid at this stage in the proceedings, we
nevertheless conclude that he has not suffered an adverse
employment action. The alteration from “lead worker” to
“individual worker” did not affect either Hamilton’s pay rate or
his job duties. Therefore, we recognize the possibility that
3
TxDOT’s evidence, which Hamilton does not challenge,
demonstrates that a number of other job titles were reclassified
from lead worker to individual worker during the same time frame.
In addition, TxDOT has provided evidence that the other two
Engineering Specialist IV employees in the same subsection of
TxDOT as Hamilton were also reclassified from “lead workers” to
“individual workers” at this time.
-8-
this reclassification may have a tangential effect on future
ultimate employment decisions, but this tangential effect does
not satisfy the second element of a prima facie case of
retaliation. For these reasons, we agree with the magistrate
judge’s grant of summary judgment to TxDOT on this claim.
B. Denying Hamilton’s request for a career-ladder
promotion
In his second claim, Hamilton alleges that he was denied a
career-ladder promotion in retaliation for pursuing his first
Title VII lawsuit. As we explained above, when he filed and
participated in a Title VII lawsuit against his employer,
Hamilton engaged in an activity protected by § 2000e-3(a). Thus,
he has satisfied the first element of his prima facie case with
respect to this claim.
In addition, Hamilton presented evidence that, on May 2,
2001, he attached to his performance evaluation a written request
that he be considered for a career-ladder promotion “to
Engineering Assistant V.” On June 29, 2001, Stuart Corder, the
District Traffic Engineer in TxDOT’s Houston District, sent
Hamilton a letter denying this request. Based on this evidence,
the magistrate judge found that Hamilton had satisfied the second
element of his prima facie case: not being granted a promotion is
an adverse employment decision. See Dollis, 77 F.3d at 781-82.4
4
TxDOT disagrees that denying Hamilton’s promotion was
an adverse employment action and asks us to follow Brown v. Coach
Stores, 163 F.3d 706, 710 (2d Cir. 1998), in which the Second
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We now turn to the third element of Hamilton’s prima facie
case: causation. A plaintiff may attempt to establish causation
in one of two ways: by circumstantial evidence or by direct
evidence. On the one hand, “[i]f the plaintiff seeks to
establish causation by circumstantial evidence, the tripartite
burden-shifting framework of McDonnell Douglas applies.”
Fierros, 274 F.3d at 191. Under this framework, the plaintiff’s
circumstantial prima facie case creates a rebuttable presumption
of retaliation and shifts the burden of production to the
employer, who must provide a legitimate, non-retaliatory reason
for the adverse employment decision. If the employer presents a
legitimate reason, then the burden of production shifts back to
the plaintiff to demonstrate that the proffered reason is
pretextual. See Fabela, 329 F.3d at 415 n.6; Fierros, 274 F.3d
at 191-92. In retaliation cases, we have held that “this final
burden requires the plaintiff to demonstrate that the adverse
employment action would not have occurred ‘but for’ the protected
activity.” Rios v. Rossotti, 252 F.3d 375, 380 (5th Cir. 2001).
On the other hand, “in the unusual instance where the
Circuit noted that “generally requesting a promotion in an annual
review” does not create a prima facie case of retaliation. It is
not clear that this rule applies to the instant case, however,
because Hamilton––unlike the plaintiff in Brown––submitted a
written request for a specific promotion during his annual
review. Nevertheless, we do not reach this issue because we
conclude below that Hamilton has failed to meet his burden of
proving that TxDOT’s asserted reasons for denying the promotion
are pretextual.
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plaintiff is able to support the elements of her claim with
direct evidence of a retaliatory motive, the McDonnell Douglas
framework does not apply.” Fabela, 329 F.3d at 415. Under this,
the “mixed-motive” method, the plaintiff’s production of direct
evidence that “retaliation was among the motives which prompted
the adverse action” shifts the burden of proof to the employer to
establish by a preponderance of the evidence that the same
decision would have been made regardless of the forbidden factor.
Id. at 415.
Whether Hamilton has provided circumstantial or direct
evidence of causation is a key issue in this case. In response
to TxDOT’s motion for summary judgment, Hamilton offered the
following evidence of retaliatory motivation: A few days after
asking for a promotion, Hamilton met with his immediate
supervisor, Rodriguez, to inquire about the status of the
request. Rodriguez informed Hamilton that he would refer the
matter to the District Traffic Manager, Corder, because he did
not have the authority to make the promotion decision. During
this meeting, Hamilton claims that Rodriguez stated that
Hamilton’s promotion depended on the outcome of his first Title
VII lawsuit. At a hearing before the magistrate judge, Hamilton
clarified both the context and the contents of this remark:
he mentioned . . . this was prior to the 11th, before
[the first lawsuit] was dismissed–-he said, “Well you
know, . . . we have to see what the outcome of the
lawsuit, ‘cause the Court might put you back into my
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original position.”5
Hamilton also contends that he asked Rodriguez about the progress
of his promotion after May 11, and that during this second
meeting Rodriguez warned him not to appeal for a new trial.
Nevertheless, Hamilton chose to file an appeal and later sent an
email to Rodriguez urging that his promotion request not be
denied “on the base [sic] if I appeal for new trial as you had
mention [sic] in part.” Rodriguez forwarded this message to
Corder, and on June 29, 2001, Corder sent Hamilton a letter
denying the promotion.6
The magistrate judge did not treat Hamilton’s allegations as
direct evidence of retaliatory motivation, however, because
Hamilton never asserted that Rodriguez was primarily responsible
5
In Hamilton’s first Title VII lawsuit, he claimed that
he should have been promoted to the position held by Rodriguez.
Thus, even when viewed in the light most favorable to Hamilton,
we simply do not understand how this statement, standing alone,
demonstrates that retaliation played a role in TxDOT’s eventual
decision not to promote Hamilton.
6
In the letter, Corder admitted that he was aware of
Hamilton’s belief that Rodriguez warned him not to appeal the
first Title VII lawsuit. But Corder vehemently denied that the
lawsuit played any role in his decisionmaking process, stating:
Your lawsuit with the Department, and any of your
decisions related to that lawsuit, have in no way been a
part of my consideration of your request for promotion.
I asked Sergio about this, and he told me he has never
said this to you in the past. Matters brought in your
lawsuit occurred prior to the arrival of Mr. Rodriguez
and I. We have worked very hard to ensure that the daily
operations of the office remain independent from the
lawsuit, in an effort to provide a productive work
environment.
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for the decision to deny his promotion. We agree with this
analysis because the uncontradicted evidence shows that Corder,
not Rodriguez, made the promotion decision. Hamilton’s only
proffered link between Rodriguez’s statements and Corder’s
decision, that Rodriguez should have had the authority to grant
the promotion, misses the mark. Even assuming that Rodriguez
made the statements in question–-as we must–-his statements do
not constitute direct evidence that retaliation was one of the
motivations for Corder’s decision to deny Hamilton’s promotion.7
We have defined direct evidence strictly as “evidence which,
if believed, proves the fact [of intentional discrimination]
without inference or presumption.” Brown v. E. Miss. Elec. Power
Ass’n, 989 F.2d 858, 861 (5th Cir. 1993) (emphasis added). For
example, we have held that a job interviewer’s statement that the
plaintiff’s age caused him concern was not direct evidence of
discrimination in the employer’s decision not to hire the
plaintiff. Haas v. ADVO Sys., Inc., 168 F.3d 732, 733-34 (5th
Cir. 1999). Although the interviewer’s remarks were neither
vague nor remote in time--and despite a reasonable inference that
7
We might be persuaded to find direct evidence of
causation if Hamilton alleged that Corder acted merely as
Rodriguez’s “cat’s paw”; that is, if Hamilton provided evidence
that Corder essentially rubber-stamped Rodriguez’s decision to
deny the promotion. See, e.g., Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 226-27 (5th Cir. 2000) (discussing this
doctrine). Hamilton, however, ignores this theory: arguing that
Rodriguez should have been able to deny the promotion does not
establish that Rodriguez was primarily responsible for Corder’s
decision.
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the interviewer had influenced the employer’s hiring
preferences–-we nevertheless noted that an additional inference
was required before we could conclude that the decisionmaker
himself chose not to hire the plaintiff based on age
discrimination. Id. at 734; cf. Fierros, 274 F.3d at 195
(holding that a decisionmaker’s own statement--that the plaintiff
would not receive a pay increase because she engaged in protected
activity–-is direct evidence of discrimination). In the context
of TxDOT’s motion for summary judgment, we must assume that
Rodriguez made the statements alleged by Hamilton. But these
statements do not prove that retaliation played a part in
Corder’s decision, unless we also presume that Rodriguez had
accurate information at the time he spoke (i.e., that Corder was,
in fact, planning to deny the promotion if Hamilton appealed for
a new trial). Therefore, we find that Hamilton’s evidence is
circumstantial––not direct––evidence of retaliatory motivation.
If we view this circumstantial evidence in the light most
favorable to Hamilton, he has satisfied the three prongs of a
prima facie case of retaliation. Under McDonnell Douglas, we
must next determine whether TxDOT has met its burden of providing
a legitimate, non-retaliatory reason for denying Hamilton’s
promotion. TxDOT has provided at least three reasons for the
nonpromotion. First, Corder has stated that Hamilton lacked the
requisite qualifications for the promotion he requested.
Importantly, throughout Corder’s tenure as District Traffic
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Manager, only two employees held the title of Engineering
Assistant V; each had more than thirty years of experience, each
was promoted from a supervisory position, each was the head of a
subsection of the department, and each regularly handled complex
work assignments. Hamilton, however, had less than ten years of
experience at TxDOT and he did not hold a supervisory position.
Second, TxDOT contends that Hamilton did not meet Corder’s
primary criterion for exercising his discretion to grant career-
ladder promotions: achieving the “exceeds standards” rating in an
annual performance evaluation and thereby demonstrating the
capability to undertake more advanced duties. In both 1999 and
2000, Hamilton earned the “below standards” rating in several job
categories, leading his evaluator to conclude: “employee’s
performance has not been up to par.” In May 2001, Hamilton
evidenced some improvement, achieving a “meets standards” rating;
nevertheless, under Corder’s criteria, he still did not qualify
for the requested promotion. Third, according to a TxDOT
administrator, it would have been highly unusual for Corder to
approve Hamilton’s promotion request because it would have placed
Hamilton in a job title and salary rate higher than that of his
direct supervisor, Rodriguez. Under these circumstances, TxDOT
claims that Corder’s decision would have faced exacting scrutiny
by higher-level officials in the Houston District.
In light of TxDOT’s legitimate, non-discriminatory rationale
for denying the promotion, the burden of production shifts back
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to Hamilton to demonstrate that TxDOT’s proffered reasons are
merely pretextual. Critically, to survive TxDOT’s motion for
summary judgment, Hamilton’s evidence of pretext must “raise [] a
genuine issue of material fact” regarding the basis of Corder’s
decision to deny his promotion. Haas, 168 F.3d at 733 (quotation
marks omitted). We conclude that Hamilton has not met this
burden. Hamilton has provided no evidence suggesting that
Corder’s given reasons for not granting the promotion were
untruthful. For example, Hamilton has not proffered evidence that
Corder gave career-ladder promotions to other employees with the
“meets standards” rating, nor does he claim that his
qualifications are equivalent to those of the two TxDOT employees
who have held the “Engineering Assistant V” position during
Corder’s tenure.
Hamilton instead relies on his belief that he deserved a
promotion “because of [his] exceptional skills and acceptance of
increased responsibilities” at TxDOT. Nonetheless, an employee’s
subjective belief that he deserved a promotion, without more, is
insufficient proof of pretext to raise a genuine issue of fact
regarding an employer’s motivation. Cf. Portis v. First Nat’l
Bank of New Albany,, 34 F.3d 325, 329 (5th Cir. 1994)
(“‘[G]eneralized testimony by an employee regarding his
subjective belief that his discharge was the result of []
discrimination is insufficient to make an issue for the jury in
the face of proof showing an adequate, nondiscriminatory reason
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for his discharge.’” (quoting Elliott v. Group Medical & Surgical
Serv., 714 F.2d 556, 564 (5th Cir.1983) (alteration in
original)). Accordingly, because Hamilton has not demonstrated
that he would have received the promotion but for his first Title
VII lawsuit, summary judgment for TxDOT was appropriate. Rios,
252 F.3d at 380.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgment.
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