                                                         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that this opinion should not be published and is not precedent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.

                                 - 1 -
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



                                - 2 -
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



                                 - 3 -
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.



                                 - 4 -
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



                               - 5 -
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


                                - 6 -
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



                               - 7 -
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


                                 - 8 -
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



                                - 9 -
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.

                              - 10 -
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.



                                - 11 -
                         IV.   CONCLUSION

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.




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