United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 28, 2004
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-50098
Summary Calendar
_____________________
TERENCE GREGORY,
Plaintiff - Appellant,
versus
TEXAS YOUTH COMMISSION; ERIC YOUNG, in
his official and individual capacity;
MELODY VIDAURRI, in her official and
individual capacity; CAROL CARMEAN, in
her official and individual capacity,
Defendants - Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, Austin Division
USDC No. A-02-262 LY
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:1
I
In this employment action, Terence Gregory, now pro se, sued
various parties: his employer, Texas Youth Commission (“TYC”), and
Eric Young, Melody Vidaurri and Carol Carmean. He sued the
individual defendants in both their individual and official
capacities. After various rulings by the district court, Gregory’s
final remaining claims on summary judgment (and now before us on
1
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this opinion should not be published and is not precedent except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.
appeal) were: 1) Title VII claims for retaliation against TYC and
2) claims against Young, Vidaurri and Carmean in their official
capacities under section 1983 for violations of the First Amendment
to the United States Constitution. He filed these retaliation
claims after he was denied a promotion to JCO V in November 2000,
arguing that the retaliation was connected to grievances and a
lawsuit he had previously filed against his employer. With respect
to his First Amendment claim, he incorporated the same facts used
to support his Title VII retaliation claim. Defendants moved for
summary judgment on both remaining claims.
The defendants contended that two of Gregory’s three Title VII
retaliation claims were not actionable under Title VII because they
did not involve “ultimate employment decisions.” With respect to
the third claim –- the denial of a promotion -- they argued that
Gregory failed to present evidence tending to show that the
defendants’ reasons for denying him the promotion were pretextual.
The district court granted the defendants’ motion for summary
judgment for the reasons asserted by the defendants.
The district court also dismissed Gregory’s claim of First
Amendment violations under section 1983 on the same grounds on
which it denied his meritless Title VII retaliation claims.
Although the district court had dismissed the underlying First
Amendment substantive claim, it further addressed Gregory’s claims
for injunctive relief against the individual state officers under
2
the Ex Parte Young exception to the Eleventh Amendment and
dismissed these claims as well.
II
Gregory now appeals the dismissal of the Title VII retaliation
claims and the First Amendment violation claim, arguing that he
made a prima facie case for retaliation and produced evidence that
Defendant-TYC’s reason for denying him the promotion was
pretextual. The district court concluded that he failed to make a
prima facie case, and we agree.
Gregory contends that TYC violated his rights under Title VII
by retaliating against him in the following manner: 1) by making
him work more overtime than other employees; 2) by denying him
proper access to TYC’s internal grievance process; and 3) by
denying him a promotion. To establish a claim for retaliation, a
Title VII plaintiff must prove 1) that he was engaged in activity
protected by Title VII; 2) “an adverse employment decision
occurred”; and 3) “there was a causal connection between the
participation in the protected activity and the adverse employment
action.” Messer v. Meno, 130 F.3d 130, 140 (5th Cir. 1997). We
should note that only adverse employment decisions are actionable
under Title VII. Actionable employment decisions are defined to
include only ultimate employment decisions. The district court did
not err in holding that making Gregory work overtime and denying
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him proper access to the internal grievance process were not
ultimate employment decisions.
Gregory’s claim that he was denied a promotion was, however,
an ultimate employment decision with respect to his Title VII
retaliation claim. The district court did not err in finding that
Gregory failed to make a prima facie showing of retaliation because
he did not provide summary judgment evidence that there was a
causal link between his protected activity and the denial of his
promotion. The material submitted by Gregory consists largely of
unsubstantiated allegations and somewhat confusing references to
depositions and does not rise to the level of evidence tending to
support his claims. “Summary judgment, to be sure, may be
appropriate, even in cases where elusive concepts such as motive or
intent are at issue, ... if the nonmoving party rests merely upon
conclusory allegations, improbable inferences, and unsupported
speculation." Grimes v. Texas Dept. of Mental Health and Mental
Retardation, 102 F.3d 137, 139 (5th Cir. 1996). Gregory alleged,
among other things, that the panelists who decided the promotion at
issue retaliated against him because of the grievances and a
lawsuit he had previously filed. The district court, however,
noted that TYC designated as interviewers two panelists who
testified under oath that they were not aware of Gregory’s previous
protected activity when they made the promotion decision. Gregory
did not present any evidence to the contrary.
4
Gregory relies on the same allegations to support his First
Amendment claim. Because, as we have noted above, these
allegations do not rise to the level of summary judgment evidence,
his First Amendment claim must also fail. Inasmuch as there is no
evidence to support a holding of a violation of Gregory’s First
Amendment rights by TYC, there is no need to further address
Gregory’s argument for Ex Parte Young injunctive relief.
Nevertheless, we find no reversible error in the district court’s
discussion of this issue. To seek relief under the Ex Parte Young
exception, a plaintiff must establish standing by showing: 1)
injury in fact; 2) causation; and 3) redressability. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The district
court dismissed these claims because the defendants were not in a
position, at the time of the suit, to redress Gregory’s complaints.
Carmean is no longer employed at TYC; Young now works for TYC in
Austin, Texas and has no authority over TYC employees at the
Giddings facility; and Vidaurri no longer has supervisory authority
over Gregory at the Giddings facility. Because Gregory failed to
produce evidence of the redressability of his complaints, his claim
for injunctive relief was meritless.
We have examined the briefs, the record, and the district
court’s opinion, and we find no reversible error in its legal
analysis or its application of this legal analysis to the facts of
5
this case.2 Therefore, for the above reasons, which were
delineated more completely in the district court’s thorough
opinion, the district court’s judgment is in all respects
1 AFFIRMED.
2
Gregory’s motions for sanctions and to supplement the record
are denied.
6