                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           July 23, 2007
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                      ))))))))))))))))))))))))))                 Clerk

                            No. 06-20483
                          Summary Calendar
                       ))))))))))))))))))))))))))

WARREN HOLLOWAY,

                Plaintiff-Appellant,

     v.

DEPARTMENT OF VETERANS AFFAIRS; ANTHONY PRINCIPI, SECRETARY,
LARRY GARDNER, JOHN DOE,

                Defendants-Appellees.


           Appeal from the United States District Court
                for the Southern District of Texas
                           No. H–04-1395



Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Warren Holloway (“Holloway”) appeals the

district court’s order granting the motion for summary judgment of

Defendants-Appellees Department of Veterans Affairs (“VA”) and

Anthony Principi, Secretary of the VA.        We VACATE the award of

summary judgment on Holloway’s retaliation claim under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and REMAND for



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT RULE
47.5.4.
a determination consistent with Burlington Northern & Santa Fe

Railway v. White, 126 S. Ct. 2405 (2006).

      Holloway, an African-American male, was formerly employed as

a computer specialist by the Michael E. DeBakey Veterans Medical

Center in Houston, Texas.    During his employment, he filed a number

of grievances under the collective bargaining agreement with the VA

and   several   EEO   complaints    alleging   race   discrimination   and

retaliation.    Holloway was terminated on August 21, 2000, after he

failed to obtain the necessary security clearance for his moderate

security risk position.1

      Holloway filed suit in April 2004, alleging race discrimination

and retaliation based on his removal from a moderate security risk

position and his termination. In addition to these claims, Holloway

alleged that the VA retaliated against him by, among other things,

denying his leave of absence request; requiring him to work on light

duty while other employees were not required to work; and subjecting

him to harassment and assault by his supervisors.2          The district

court dismissed Holloway’s race discrimination and retaliation

claims in their entirety.          Holloway appeals only the district

court’s dismissal of the non-removal, non-termination retaliation


      1
       Holloway’s position was designated a moderate security risk
in November 1992. Holloway was removed from his moderate security
risk position on July 7, 2000, because he had not received the
required security clearance.
      2
       Holloway alleges a total of twenty-two acts of retaliation
by the VA (“the non-removal, non-termination retaliation claim”).

                                     2
claim.

       We have jurisdiction over this appeal under 28 U.S.C. § 1291

because it arises from a final judgment of the district court.                  This

court reviews a summary judgment de novo, using the same                    standards

applied by the district court.                Dallas County Hosp. Dist.              v.

Assocs. Health & Welfare Plan, 293 F.3d 282, 285 (5th Cir. 2002).

       To   establish    a   claim   of   retaliation      under     Title    VII,    a

plaintiff     must    demonstrate    that:     (1)    he   engaged     in    activity

protected by Title VII; (2) his employer took an adverse employment

action against him; and (3) a causal connection exists between the

protected activity and the adverse employment action.                   See, e.g.,

Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir.

2003).       The     district   court     dismissed    the   non-removal,       non-

termination retaliation claim on the ground that Holloway failed to

show   an   adverse     employment      because   only     “ultimate    employment

decisions such as hiring, granting leave, discharging, promoting,

and compensating” constituted adverse employment actions.                    Holloway

v. Dep’t of Veterans Affairs, No. H-04-1395, 2006 WL 1168893, *4

(S.D. Tex. April 28, 2006) (citing Felton v. Polles, 315 F.3d 470,

486 (5th Cir. 2002)).

       After the district court rendered its decision, the Supreme

Court decided Burlington Northern, which rejected the approach taken

by several circuits, including this one, for determining adverse

employment actions in retaliation cases.              Instead of the “ultimate

employment decision” standard, the Supreme Court held that an

                                          3
employee suffers an adverse employment action if “a reasonable

employee would have found the challenged action materially adverse,

which   in   this   context    means    it    well    might   have     dissuaded   a

reasonable    worker    from      making     or      supporting    a    charge     of

discrimination.”       Burlington N., 126 S. Ct. at 2415 (internal

quotation marks omitted).          Because this circuit’s standard for

determining an adverse employment action is no longer limited to

ultimate employment decisions, we remand Holloway’s non-removal,

non-termination retaliation claim for reconsideration in light of

Burlington Northern.

     For the reasons stated above, we VACATE the district court’s

grant   of   summary   judgment    on   the    non-removal,       non-termination

retaliation claim and REMAND for a determination consistent with

Burlington Northern.


VACATED and REMANDED.




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