United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 17, 2005
FOR THE FIFTH CIRCUIT
________________ Charles R. Fulbruge III
Clerk
No. 04-30305
Summary Calendar
________________
NEWTON MCNEALY
Plaintiff - Appellant
v.
EMERSON ELECTRIC COMPANY, doing business as Fisher Service
Company
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
No. 02-CV-425-B
_________________________________________________________________
Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
Newton McNealy, Plaintiff-Appellant, is an African American
employed by Defendant-Appellee Emerson Electric Co. d/b/a Fisher
Service Company. McNealy sued Fisher alleging that he was
discriminated against on the basis of race and age and that he
was subjected to a hostile work environment. The district court
dismissed McNealy’s claims on summary judgment. 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that this opinion should not be published and is not precedent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.
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A. Factual Background
Plaintiff-Appellant Newton McNealy, an African American born
in 1955, is employed by Defendant-Appellee Emerson Electric Co.
d/b/a Fisher Service Company (“Fisher”) as a machinist in its
Gonzales, Louisiana facility. Fisher designs, manufactures,
distributes, and services various types of industrial valves for
use in the petrochemical industry. Fisher employs approximately
thirteen machinists at its Gonzales facility. The machinists
work in either the repair division or the Encore division. The
repair division services and repairs Fisher valves. The Encore
division, which was created in 1998, reconditions third-party
manufactured valves to Fisher’s specifications for resale. Only
a handful of the machinists work in the Encore division, while
the remainder, including McNealy, work in the repair division.
McNealy began working for Fisher in 1987 as a machinist on
the night shift. In 1994, McNealy submitted a bid for a non-
machinist position on the day shift. After he bid, McNealy was
told that the new position paid substantially less than he was
making as a machinist. McNealy made clear that he was
nevertheless interested in the job. Fisher eventually selected
McNealy for the position. However, on what would have been his
first day in his new position, McNealy informed his supervisors
that he was no longer willing to accept the reduced pay of the
new position. Fisher allowed McNealy to return to his old job at
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his old rate of pay.
In March 1998, McNealy was transferred to the day shift. In
June 1998, Fisher created the Encore division. Eric Kitto, the
general manager of the Gonzales facility, informed the machinists
that two positions would be available in the new Encore division,
and that they could submit bids to transfer if they were
interested. McNealy submitted a bid to transfer, but Fisher
awarded the two available positions, which paid a salary similar
to what McNealy was then earning, to two of its other employees
whose skills were allegedly comparable to those of McNealy and
who had more seniority with the company. In December 2000,
Fisher again had an opening in the Encore division. This
opening, however, was for a position that paid substantially less
than what McNealy was earning. McNealy nevertheless applied for
the position. After Kitto met with McNealy to make sure he
understood that the new position was at a lower pay rate, McNealy
withdrew his application. Later that month, Fisher posted two
more openings in the Encore division, but McNealy was not
considered for these positions because the salary being offered
was substantially lower than what he was then earning and because
these positions called for experience McNealy did not possess.
In March 2001, McNealy informed Mark Bourgeois, his
supervisor, that Fisher was unlawfully dumping potentially
hazardous waste. Subsequently, in April 2001, McNealy applied
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for an open machinist position in the Encore division. This
position involved the same basic job duties he held in the repair
division and would have maintained his pay at the same rate.
Kitto chose a white employee, Lloyd Young, for the position
because Young had been with the company eleven more years than
McNealy. Around the same time, McNealy bid for two other
machinist openings in the Encore division. Again, these
positions paid less than what McNealy was then earning. McNealy
seemingly believed that he would be able to make up the pay
differential through overtime. McNealy subsequently removed his
name from consideration when Kitto presented him with
calculations showing McNealy that he could not make up the gap
through overtime.
To meet Fisher’s manpower needs, in August 2002, McNealy was
temporarily transferred to the Encore division. His pay was
unaffected by the move. In November of that year, McNealy was
reprimanded twice for work-related issues. He soon requested to
be transferred back to the repair division, but the request was
denied since Fisher still needed his services in the Encore
division. In April 2003, following an altercation with a co-
worker, McNealy was suspended without pay for two weeks and was
moved back to the repair division. Because of the disciplinary
action, McNealy was prohibited from ever securing a permanent
position in the Encore division.
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B. Procedural Background
On April 30, 2002, McNealy filed suit against Fisher in the
United States District Court for the Middle District of
Louisiana. McNealy’s complaint alleged that Fisher:
(1) discriminated against him on the basis of race in violation
of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq. (2000), 42 U.S.C. § 1981 (2000), and LA.
REV. STAT. ANN. § 23:301 (West 1998); (2) created a hostile work
environment in violation of 42 U.S.C. § 2000e et seq. (2000), 42
U.S.C. § 1981 (2000), and LA. REV. STAT. ANN. § 23:301 (West 1998);
(3) discriminated against him on the basis of age in violation of
the Age Discrimination in Employment Act of 1967 (“ADEA”), 29
U.S.C. § 621 et seq. (2000); (4) retaliated against him in
violation of Louisiana’s environmental whistleblower statute, LA.
REV. STAT. ANN. § 30:2027 (West 2000); and (5) committed the tort
of intentional infliction of emotional distress, LA. CIV. CODE ANN.
art. 2315 (West 1997).
In August 2003, upon completion of discovery, Fisher moved
for summary judgment on all claims. On February 26, 2004, the
district court dismissed each of McNealy’s federal claims with
prejudice. The district court declined to exercise supplemental
jurisdiction over McNealy’s state law claims, and it thus
dismissed them without prejudice. McNealy now appeals the
district court’s dismissal of his federal claims and of his state
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law claim under the whistleblower statute.
II. STANDARD OF REVIEW
A. Summary Judgment Standard of Review
We review a district court’s grant of summary judgment de
novo, applying the same legal standards as the district court.
Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir.
2001). Summary judgment is appropriate if there are no genuine
issues of material fact and the movant is entitled to judgment as
a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The initial burden to demonstrate the
absence of a genuine issue of material fact is on the movant.
Celotex, 477 U.S. at 324. Upon showing that there is an absence
of evidence to support an essential element of the non-movant’s
case, the burden shifts to the non-movant to establish that there
is a genuine issue of material fact in dispute. Id.
B. The McDonnell Douglas Framework
The burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), governs
McNealy’s race and age discrimination claims. See Roberson v.
Alltel Info. Servs., 373 F.3d 647, 651 (5th Cir. 2004) (stating
that Title VII’s burden-shifting framework also applies to claims
made under the ADEA and § 1981). Under the McDonnell Douglas
approach, the plaintiff has the initial burden of proving a prima
facie case by a preponderance of the evidence. McDonnell
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Douglas, 411 U.S. at 802. To state a prima facie case for
discrimination, a plaintiff must show that: (1) he is a member of
a protected class; (2) he was qualified for the position; (3) he
suffered an adverse employment action; and (4) he was replaced by
someone not of the protected class or that others similarly
situated were more favorably treated. See, e.g., Okoye v. Univ.
of Tex. Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).
For the purposes of proving the prima facie case, an adverse
employment action must be “[a] tangible employment action
constitut[ing] a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits.” Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761 (1998).
Once the plaintiff establishes a prima facie case, the
burden of production shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the challenged
employment action. McDonnell Douglas, 411 U.S. at 802. If the
defendant proffers a legitimate reason, the burden shifts back to
the plaintiff to show that the defendant’s reason was merely a
pretext for discrimination. Rios v. Rossotti, 252 F.3d 375, 378
(5th Cir. 2001) (citing Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 138-42 (2000)). Throughout, the ultimate
burden of persuasion remains with the plaintiff. Reeves, 530
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U.S. at 143.
III. ANALYSIS
A. Race and Age Discrimination Claims
The district court found that none of the transfers denied
to McNealy was actionable. The district court first found that
McNealy’s claims relating to his failure in 1998 to secure one of
the two open machinist positions in the Encore division were
time-barred. McNealy had argued in district court that the
continuing tort doctrine rescued his 1998 claims. However, the
court found the doctrine inapposite, and it thus dismissed
McNealy’s 1998 claims without reaching their merits. As for the
other denied transfers, the district court found that because the
new positions all paid either the same or less than what McNealy
was earning at the time, he did not suffer an adverse employment
action.
On appeal, McNealy argues that the district court misapplied
Louisiana’s continuing tort doctrine. He also argues that there
is a genuine dispute as to whether the denied transfers were
adverse employment actions. Specifically, he argues that he
sought out employment in the Encore division because he thought
he would have better chances for career advancement and more
opportunity to earn overtime. It thus seems that in McNealy’s
view, the transfers would have been a promotion. It has been
clearly recognized that a failure to promote can be an adverse
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employment action under the McDonnell Douglas framework. See
Ellerth, 524 U.S. at 761. Thus, we must query whether McNealy
has pointed to evidence raising an issue of fact as to whether
the denied transfers really would have amounted to a promotion.
There is nothing in the record to suggest that a transfer to
the Encore division would have placed McNealy on a different
career path. All that has been established is that the
prospective positions would have either paid the same or
substantially less than what McNealy was earning at the time and
that, irrespective of any transfers, he would be doing the same
work in either the repair division or the Encore division. Thus,
rather than being a promotion, at best, a transfer to the Encore
division would have been a lateral transfer. It is well-
established that a lateral transfer cannot form the basis of an
adverse employment action. See, e.g., Burger v. Central
Apartment Mgmt., Inc., 168 F.3d 875, 879 (5th Cir. 1999) (“We
disagree with [the plaintiff’s] argument that the denial of his
request for a purely lateral transfer constitutes an ‘ultimate
employment action.’”).
Finally, we need not address McNealy’s arguments regarding
the continuing tort doctrine because even if we assume, arguendo,
that the district court’s decision on this issue were in error,
the denied transfer in 1998 is no different than any of the other
denied transfers. At best, it would have been a lateral transfer
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and, as such, is not an adverse employment action.
B. Hostile Work Environment Claim
To establish a hostile work environment claim1, a plaintiff
must prove that: (1) he is in a protected class; (2) he was
subjected to unwelcome harassment; (3) the harassment was based
on his status as a member of the protected class; (4) the
harassment affected a term, condition, or privilege of
employment; and (5) the employer knew or should have known of the
harassment and failed to take remedial action. Celestine v.
Petroleos de Venez. SA, 266 F.3d 343, 353 (5th Cir. 2001). The
Supreme Court has stated that harassment affects a term or
condition of employment when it is so severe that it alters the
conditions of the victim’s employment and creates an abusive
working environment. Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (U.S. 1993).
In rendering its judgment, the district court noted that
McNealy did not address Fisher’s summary judgment arguments
regarding his hostile work environment claim. The court chose
not to address Fisher’s argument that McNealy abandoned his
1
McNealy alleged in his complaint that Fisher created a
hostile work environment because of both his race and his age.
The district court noted that the Supreme Court and this court
have yet to definitively state whether the hostile work
environment framework extends to claims under the ADEA. However,
the district court found that it did not need to address this
issue since McNealy presented no evidence of harassment. For
similar reasons, we assume, arguendo, that the hostile work
environment framework extends to claims under the ADEA.
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hostile work environment claim, since it found that the claim
could be disposed of on other grounds. Specifically, the
district court noted that McNealy produced no evidence of any
harassment that altered the conditions of his employment. On
appeal, McNealy does nothing more than assert that he can
establish a claim for hostile work environment. However, he does
not draw our attention to any relevant evidence that the district
court overlooked. Further, we find no such evidence of
harassment in the record. Accordingly, we find that the district
court’s grant of summary judgment as to McNealy’s hostile work
environment claim was proper.
C. Whistleblower Statute Claim
The district court declined to exercise supplemental
jurisdiction over McNealy’s whistleblower claim, as well as over
his other state law claim. Accordingly, the court dismissed both
claims without prejudice. The decision not to exercise
supplemental jurisdiction is reviewed on an abuse of discretion
standard. Sibley v. Lemaire, 184 F.3d 481, 490 (5th Cir. 1999).
Rather than argue that the district court somehow abused its
discretion, McNealy instead attempts to argue the merits of his
whistleblower claim. Because McNealy offers no argument as to
how the district court abused its discretion, and since we see no
abuse of discretion ourselves, we affirm the district court’s
dismissal of McNealy’s whistleblower claim.
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IV. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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