United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 21, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-31106
Summary Calendar
ALVIN L CARTHON, SR
Plaintiff - Appellant
v.
JOHNSON CONTROLS INC
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
No. 02-CV-512
Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Alvin L. Carthon, Sr. appeals from the
district court’s grant of Defendant-Appellee Johnson Controls,
Inc.’s motion for summary judgment with respect to Carthon’s
claims of employment discrimination, retaliation, and intentional
infliction of emotional distress. For the following reasons, we
AFFIRM.
I. BACKGROUND
*
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that this opinion should not be published and is not precedent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.
No. 03-31106
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Carthon, an African-American male, was hired by Johnson
Controls as a maintenance mechanic for its Shreveport, Louisiana
plant in 1999. Since that time, Carthon asserts that he has been
denied promotions to five different positions because of his
race. First, in 2000, Mark Geer, the plant engineering manager
and Carthon’s supervisor, left the company and his position was
eliminated. According to Carthon, his supervisors eliminated the
post to prevent him from applying for and receiving a promotion.
Second, Carthon alleges that he was discriminated against when
Michael Griffith, a white female, was selected to fill a newly
created maintenance superintendent position in 2000. Third,
Carthon asserts that he should have been promoted when Johnson
Controls created a project engineer position designed to absorb
the duties formerly performed by the plant engineering manager.
Instead, Brian Esposito, a white male, was selected. Fourth,
Carthon complains that Chet Sears, a white male, was promoted to
a manager trainee position instead of Carthon. Last, Johnson
Controls selected Morgann Davidson, a white female, for a quality
engineer position over Carthon in late 2000. In general, Carthon
contends that his non-promotions were incidents of racial
discrimination because his “qualifications were equal to, or in
many cases exceeded, those who were awarded the position[s], all
of whom were white.”
Carthon also alleges that he was subjected to unlawful
retaliation when he was written up for failing “to scan out at
the end of his shift” on September 20, 2000. According to
No. 03-31106
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Carthon, he received this warning, his first disciplinary
sanction at Johnson Controls, on September 26, 2000––one day
after expressing to two supervisors his concern that he was being
denied promotional opportunities at Johnson Controls because of
his race. Carthon also claims to have suffered mental anguish,
embarrassment, and humiliation as a result of his various non-
promotions and the disciplinary action.
In March 2002, Carthon brought suit against Johnson Controls
alleging employment discrimination and retaliation, in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq. (2000), and Louisiana law, see LA. REV.
STAT. ANN. §§ 23:301 et. seq. (West 1998), § 51:2256 (West 2003).
In addition, Carthon brought a state law claim for intentional
infliction of emotional distress. Johnson Controls subsequently
filed a motion for summary judgment on all of Carthon’s claims.
The district court granted this motion and entered a judgment in
favor of Johnson Controls. Carthon timely appeals.
II. DISCUSSION
We review a district court’s grant of summary judgment de
novo, applying the same standard as the district court. Manning
v. Chevron Chem. Co., 332 F.3d 874, 877 (5th Cir. 2003). Summary
judgment is proper when the record, viewed in the light most
favorable to the non-moving party, demonstrates no genuine issue
of material fact and the moving party is entitled to judgment as
a matter of law. See FED. R. CIV. P. 56(c); see also Blow v. City
of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001).
No. 03-31106
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A. Employment Discrimination
In the district court, Carthon attempted to prove that
Johnson Controls’s employees intentionally discriminated against
him because of his race by utilizing the familiar burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
05 (1973).1 Under this framework, Carthon was first required to
establish a prima facie case of discrimination by a preponderance
of the evidence on each of his non-promotion claims by showing
that (1) he is within a protected class, (2) he was qualified for
the position, (3) he was not selected, and (4) the position was
filled by a person not in the protected class. See Blow, 236
F.3d at 296. The district court assumed, for the purposes of
summary judgment, that Carthon met this initial burden.2
A plaintiff’s prima facie case “creates a rebuttable
presumption that the employer unlawfully discriminated against”
him. Johnson, 351 F.3d at 622 (internal quotation marks
omitted). The burden of production then shifts to the employer
to proffer a legitimate, non-discriminatory reason for not
promoting the plaintiff. See Blow, 236 F.3d at 296-97. Here,
Johnson Controls provided evidence that it did not chose Carthon
1
The parties do not dispute that Title VII principles
govern Carthon’s state law discrimination claims. See Johnson v.
Louisiana, 351 F.3d 616, 619 n.1 (5th Cir. 2003).
2
Because we agree with the district court that this case
can be resolved on other grounds, we need not address Johnson
Controls’s argument that Carthon failed to present a prima facie
case of discrimination. See Perez v. Region 20 Educ. Serv. Ctr.,
307 F.3d 318, 324 (5th Cir. 2002).
No. 03-31106
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to fill the positions both because his supervisors had concerns
about his efficiency, initiative, attitude, and communication
skills and because the individuals who were selected had
supervisory experience, leadership abilities, and/or histories of
going “above and beyond” their assigned duties.3 Therefore, to
survive the motion for summary judgment, the district court
required Carthon to provide sufficient evidence to create a
genuine issue of material fact regarding whether these reasons
were merely a pretext for discrimination. See id. at 297-98.
Ultimately, the district court held that Carthon did not meet
this burden because he offered only conclusory allegations that
he was more qualified than the other applicants.
On appeal, Carthon claims that the Supreme Court’s decision
in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), signals the
demise of the McDonnell Douglas framework. In Desert Palace, the
Court held that a plaintiff who presents only circumstantial (and
not direct) evidence of discrimination is nevertheless entitled
to a “mixed motive” jury instruction under 42 U.S.C.
§ 2000e-2(m). Id. at 101. Importantly, to succeed on a Title
VII claim under the mixed motive analysis, the “plaintiff need
only present sufficient evidence [to demonstrate that] ‘race,
color, religion, sex, or national origin was a motivating
factor’” behind the adverse employment decision. Id. (emphasis
3
The company also noted that it did not promote Carthon
to the plant engineering manager position because that post was
eliminated as unnecessary based on the size of the Shreveport
plant at the time Greer left the company.
No. 03-31106
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added). According to Carthon, Desert Palace implicitly overrules
the McDonnell Douglas burden-shifting framework, allowing all
Title VII plaintiffs to proceed under a mixed motive theory of
recovery. We need not reach the question whether Desert Palace
has changed the role of McDonnell Douglas in Title VII cases,
however. Carthon waived this argument by invoking the McDonnell
Douglas framework below. See Hillstrom v. Best Western TLC
Hotel, 354 F.3d 27, 30-31 (1st Cir. 2003). And, even assuming
that the issue was preserved, the outcome of this case would be
unaffected because Carthon “has provided no evidence, direct or
circumstantial, from which a reasonable jury could logically
infer that [race] was a motivating factor” in Johnson Controls’s
promotion decisions. Allen v. City of Pocahontas, Ark., 340
F.3d 551, 557 n.5 (8th Cir. 2003); see also Love-Lane v. Martin,
355 F.3d 766, 786-87 (4th Cir. 2004); Hillstrom, 354 F.3d at
30-31.
As the district court correctly noted, Carthon introduced no
evidence tending to show that Johnson Controls’s reasons for not
promoting him were pretextual. Carthon disagrees, and asserts
that the company’s reliance on largely subjective criteria is
itself evidence of pretext. But, we have held that “[t]he mere
fact that an employer uses subjective criteria” to make
employment decisions does not demonstrate pretext. Manning, 332
F.3d at 882. Carthon also argues that because he testified in
his deposition that he has never been counseled for lack of
efficiency, poor initiative, or ineffective communication skills,
No. 03-31106
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these reasons for not promoting him are necessarily false. Yet,
Carthon’s contention is belied by his own admission, in the same
deposition, that he was verbally counseled by a supervisor
regarding the length of time it took him to complete his
assignments and to respond to maintenance calls. Finally,
Carthon’s assertion that “his education was equivalent . . . and
at times superior to the other candidates selected” is equally
unpersuasive. Even if Carthon is correct,4 this fact does not
cast doubt on Johnson Controls’s assertion that the selectees
were more qualified to fill each position because of their on-
the-job experience and work performance. See Price v. Fed.
Express Corp., 283 F.3d 715, 723 (5th Cir. 2002) (holding that a
plaintiff’s “better education, work experience, and longer tenure
with the company do not” create an inference of pretext); Odom v.
Frank, 3 F.3d 839, 847 (5th Cir. 1993) (refusing to infer pretext
unless “[the plaintiff]’s qualifications leap from the record and
cry out to all who would listen that he was vastly––or even
clearly––more qualified for the subject job than” the candidate
selected).
Because Carthon failed to provide any evidence of pretext,
we affirm the district court’s grant of summary judgment to
Johnson Controls on the non-promotion claims.
B. Retaliation
4
In his deposition, Carthon admitted that he was
unfamiliar with Griffith’s, Davidson’s, and Sears’s experience,
qualifications, and background.
No. 03-31106
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Carthon next contends that the district court erred in
concluding, as a matter of law, that Johnson Controls did not
unlawfully retaliate against him by issuing a written
disciplinary warning one day after he complained to his superiors
about racial discrimination in the company. To establish a prima
facie case of retaliation under Title VII, Carthon must show “(1)
that [he] engaged in activity protected by Title VII, (2) that an
adverse employment action occurred, and (3) that a causal link
existed between the protected activity and the adverse employment
action.” Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 191 (5th
Cir. 2001) (internal quotation marks omitted). We agree with the
district court that Carthon failed to satisfy the second prong of
this test. “This court has determined that only ‘ultimate
employment decisions,’ ‘such as hiring, granting leave,
discharging, promoting, and compensating’ satisfy the ‘adverse
employment action’ element of a prima facie case of retaliation.”
Id. (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.
1995)); see also Mattern v. Eastman Kodak Co., 104 F.3d 702, 707
(5th Cir. 1997) (“[O]ur court has stated that ‘Title VII was
designed to address ultimate employment decisions, not to address
every decision made by employers that arguably might have some
tangential effect upon those ultimate decisions.’” (quoting
Dollis, 77 F.3d at 781-82)). Carthon’s receipt of a single
disciplinary warning––without an attendant change in the terms or
conditions of his employment––does not qualify as an ultimate
employment decision. See Thomas v. Tex. Dep’t of Criminal
No. 03-31106
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Justice, 220 F.3d 389, 394 n.2 (5th Cir. 2000) (holding that
“receiving formal discipline” is not an “ultimate employment
decision”).
On appeal, Carthon suggests that the Supreme Court
implicitly overruled this circuit’s ultimate employment decision
doctrine when it held that the anti-retaliation provision of
Title VII, 42 U.S.C. § 2000e-3(a), protects former as well as
current employees. See Robinson v. Shell Oil Co., 519 U.S. 337,
346 (1997). We disagree. After Robinson, we have continued to
apply the “ultimate employment decision” doctrine. See, e.g.,
Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 531 (5th
Cir. 2003); Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875,
878 (5th Cir. 1999). As we explained in Mattern, by limiting
recovery to cases where an employer’s retaliation impacts an
ultimate employment decision, this circuit ensures that an action
that “might jeopardize” employment decisions in the “future,” but
has as yet had no tangible effect, does not give rise to
liability. 104 F.3d at 708. Robinson, which held that a
plaintiff could bring a claim of retaliation after her former
employer provided a negative job reference in response to her
application for employment at a different company, does not cast
doubt on the viability of this rule. 519 U.S. at 339, 346.
Importantly, the negative reference in Robinson was tied to a
specific “ultimate employment decision” (hiring), albeit not by
the former employer; it was not actionable simply because it
might have affected an employment decision that may or may not
No. 03-31106
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have taken place in the future. Carthon’s receipt of a single
written disciplinary warning, by contrast, does not rise to the
level of actionable retaliation. We therefore affirm the
district court’s grant of summary judgment to Johnson Controls on
this claim.
C. Intentional Infliction of Emotional Distress
Finally, Carthon asserts that the district court erred in
concluding that his claim for intentional infliction of emotional
distress was legally insufficient. In Louisiana, an employee may
recover against his employer for intentional infliction of
emotional distress if he demonstrates “(1) that the conduct of
the [employer] was extreme and outrageous; (2) that the emotional
distress suffered by the [employee] was severe; and (3) that the
[employer] desired to inflict severe emotional distress or knew
that severe emotional distress would be certain or substantially
certain to result from his conduct.” White v. Monsanto Co., 585
So. 2d 1205, 1209 (La. 1991). Viewing the record in the light
most favorable to Carthon, his allegations fail to satisfy the
first prong of this analysis. Johnson Controls’s non-
discriminatory decisions not to promote Carthon on five
occasions, combined with the issuance of a single disciplinary
warning after Carthon complained about not receiving the
promotions, is not conduct that is “so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable
in a civilized community.” Id.; cf. Nicholas v. Allstate Ins.
No. 03-31106
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Co., 765 So. 2d 1017, 1025-28 (La. 2000) (reviewing cases).
Thus, we affirm the district court’s grant of summary judgment to
Johnson Controls on this claim.
III. CONCLUSION
Accordingly, we AFFIRM the judgment of the district court.