Kang v. Board of Supervisors of Louisiana State University

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 3, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-30214
Summary Calendar
MANJIT S KANG,
Plaintiff-Appellant,
versus
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY; LOUISIANA STATE
UNIVERSITY DEPARTMENT OF AGRONOMY,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 00-CV-906-C-M-1
Before HIGGINBOTHAM, EMILIO M. GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Appellant Manjit S. Kang appeals the district court’s grant of
Appellee’s motion for summary judgment on his employment
discrimination and hostile work environment claims. For the reasons
stated below, we AFFIRM the district court.
I.
Since 1986, Kang has worked as a professor in the Department
*
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this opinion should not be published and is not precedent except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.
of Agronomy at Louisiana State University (“LSU”). In 1996, Kang
filed a claim with the Equal Employment Opportunity Commission
(“EEOC”), alleging that LSU had discriminated against him when it
rejected his application to become Department Head of the
Department of Agronomy. LSU selected another faculty member, a
white man, for the position, and Kang believed he had been
overlooked because he was of East Indian descent. On September 30,
1997, Kang filed a second claim with the EEOC, alleging that LSU
retaliated against him after the filing of his first claim of
discrimination. Shortly thereafter, he filed his first suit in
district court, raising claims of discrimination and retaliation,
but this suit was subsequently dismissed on summary judgment.1
On December 4, 2000, Kang filed the instant suit in district
court. Kang claimed that he had been subjected to additional
retaliation, complaining of five specific acts. First, in April
1999, he received a poor performance evaluation from Freddie
Martin, the Head of the Department of Agronomy. Second, while he
was out of the country on a lecturing assignment, he was “written
up” by Appellee for “unacceptable conditions” in one of his
research areas. Third, he received a less-than-average pay raise of
3% in July, 1999, making him the lowest paid professor in the
department. Fourth, Appellee failed to nominate him for a teaching
award, even though he had been nominated in previous years.
1
See Kang v. State of Louisiana, 229 F.3d 1147 (Table) (5th
Cir. 2000), cert. denied 531 U.S. 1126 (2001).
2
Finally, the Department Head “unfairly and unjustly” criticized him
at a faculty meeting on January 14, 2000 in front of his peers.
II.
The district court concluded that Kang could not make out a
prima facie case of retaliation under Title VII of the Civil Rights
Act of 19642 and granted summary judgment for Appellee because none
of the acts Kang complained of constituted “ultimate employment
acts.”3 We find no fault in the district court’s conclusion.
To state a claim of retaliation under Title VII, plaintiff
must demonstrate: “(1) that she 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.”4 In Mattern v. Eastman Kodak Co., we
concluded that only “ultimate employment decisions” - decisions
relating to “hiring, granting leave, discharging, promoting, and
compensating” - satisfy the second prong of this test.5 To satisfy
this standard, the action complained of must “have more than a
‘mere tangential effect on a possible future ultimate employment
2
42 U.S.C. § 2000e-3(a).
3
Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.
1997) (“‘Ultimate employment decisions’ include acts ‘such as
hiring, granting leave, discharging, promoting, and
compensating.’”).
4
Evans v. City of Houston, 246 F.3d 344, 352 (5th Cir.2001)
(quoting Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir.1996)).
5
Mattern, 104 F.3d at 707.
3
decision.’”6 Thus, “‘interlocutory or mediate’ decision[s] which
can lead to an ultimate decision” are insufficient to support a
prima facie case of retaliation.7
Under this standard, none of the actions that Appellant
complains of, even if true,8 qualify as “ultimate employment
decisions.” Our decisions reject the proposition that his first
complaint - that he received a poor performance evaluation -
qualifies as an adverse employment decision.9 Similarly, the other
actions allegedly taken by Appellee - failing to nominate him for
a teaching award, unjustly criticizing him in front of his peers at
a faculty meeting, and writing him up for not keeping his research
area clean - do not “constitute ‘adverse employment actions’
because of their lack of consequence.”10
Kang’s final allegation, however, is a closer question. Kang
claims that, in July 1999, he was given a less-than-average pay
6
Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d
512, 519 (5th Cir.2001) (quoting Walker v. Thompson, 214 F.3d 615,
629 (5th Cir.2000)).
7
Mattern, 104 F.3d at 708 (5th Cir. 1997).
8
For purposes of our review of the district court’s grant of
summary judgment, we accept as true Appellant’s allegations. See
Casey Enterprises v. American Hardware Mutual Insurance Co., 655
F.2d 598, 601-02 (5th Cir. 1981). Appellee, of course, denies that
Kang’s filing of discrimination charges in any way affected their
interaction with him.
9
Mattern, 104 F.3d at 708.
10
Id.4
raise, causing him to be the lowest paid professor in his
department. In Fierros v. Texas Department of Health, we explained
that a denial of a pay increase can be an “ultimate employment
action,” despite our suggestion in Mattern to the contrary.11 In the
present case, however, it is undisputed that Appellant did receive
a pay raise and that his raise was both substantial and larger than
that received by some of his colleagues.12 Although we have never
explained precisely when denials of pay raises constitute ultimate
employment decisions, under the circumstances of this case, we
cannot say that Kang has suffered an adverse employment action.
Appellant candidly admits that our prior decisions compel this
conclusion. He argues, however, that our approach to Title VII
retaliation cases is unduly restrictive and asks that we endorse
the broader rule adopted in some other circuits.13 Indeed, we have
ourselves noted that “the continuing vitality of the ‘ultimate
employment decision’ doctrine is questionable in the light of”
11
274 F.3d 187, 193 (5th Cir. 2001) (“In cases since Mattern,
we have held that a denial of a pay increase and similar actions
are ‘ultimate employment decisions.’”).
12
Kang admits that he received a raise of 3%. Others on the
LSU faculty received raises ranging from 0% to 7%.
13
See, e.g., Von Gunten v. Maryland, 243 F.3d 858, 865 (4th
Cir. 2001); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456
(11th Cir. 1998); Knox v. Indiana, 93 F.3d 1327, 1334 (7th
Cir.1996); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984-86 (10th
Cir. 1996); Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st
Cir.1994); Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987).
5
recent Supreme Court decisions.14 Nonetheless, “[i]t is
well-established in this circuit that one panel of this Court may
not overrule another” unless the prior decision “‘is overruled,
expressly or implicitly, by either the United States Supreme Court
or by the Fifth Circuit sitting en banc.’”15 Accordingly, we decline
Kang’s invitation to alter our approach to Title VII retaliation
claims.
III.
In addition to his claim of retaliation, Kang contends that
the district court erred in dismissing his claim that Appellee’s
actions created a “hostile work environment.” To satisfy the
requirements of a claim for hostile work environment, however, a
plaintiff must demonstrate that an employer’s discriminatory
actions were “sufficiently severe or pervasive that they . . .
alter[ed] the conditions of employment and . . . create[d] an
abusive working environment.”16 The actions that Kang complains of,
14
See Felton v. Polles, 315 F.3d 470, 486-87 (discussing
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and
Faragher v. City of Boca Raton, 524 U.S. 775 (1998)); see also
Watts v. The Kroger Co., 170 F.3d 505, 510 n.4 (5th Cir. 1999)
(expressly declining to reach the question whether Burlington’s
definition of “tangible employment actions” is identical to
Mattern’s definition of an “adverse employment action”).
15
Central Pines Land Co. v. United States, 274 F.3d 881, 893
(5th Cir. 2001) (quoting United States v. Kirk, 528 F.2d 1057 (5th
Cir. 1976)).
16
DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591(5th Cir. 1995).
6
while potentially inappropriate, do not satisfy this standard.
IV.
Because none of the actions on which Kang bases his
retaliation claim rises to the level of an “ultimate employment
decision,” he has failed to make a prima facie showing of
retaliation. He has also failed to demonstrate that the Appellee’s
actions were pervasive or severe enough to create a hostile work
environment. For these reasons, the judgment of the district court
below is AFFIRMED.
7