                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                               January 27, 2005
                         FOR THE FIFTH CIRCUIT
                            ________________               Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-20365
                           Summary Calendar
                           ________________

TERRY LOUIS STEWART

          Plaintiff - Appellant

     v.

MISSOURI PACIFIC RAILROAD COMPANY; MISSOURI PACIFIC RAILROAD
COMPANY, doing business as Union Pacific Railroad; UNION PACIFIC
RAILROAD; UNION PACIFIC RAILROAD COMPANY; UNION PACIFIC RAILROAD
CORPORATION

          Defendants - Appellees
_________________________________________________________________

Consolidated with
                           ________________

                             No. 04-20470
                           Summary Calendar
                           ________________

CEDRIC EMANUEL

          Plaintiff - Appellant

     v.

MISSOURI PACIFIC RAILROAD COMPANY; MISSOURI PACIFIC RAILROAD
COMPANY, doing business as Union Pacific Railroad; UNION PACIFIC
RAILROAD; UNION PACIFIC RAILROAD COMPANY; UNION PACIFIC RAILROAD
CORPORATION

          Defendants - Appellees
_________________________________________________________________

          Appeals from the United States District Court
                for the Southern District of Texas
                    Nos. H-02-4854 & H-02-4851
_________________________________________________________________


                                 - 1 -
Before KING, Chief Judge, and JONES and DENNIS, Circuit Judges.

PER CURIAM:*

     Terry Stewart and Cedric Emanuel, Plaintiffs-Appellants,

each brought a Title VII suit against his employer, Defendant-

Appellee Union Pacific Railroad Company, claiming discrimination

and retaliation.   In each case, Union Pacific filed a motion for

summary judgment, and the court granted summary judgment in favor

of Union Pacific on all claims.    Stewart and Emanuel each

appealed the district court’s judgment, and they have since

consolidated their appeals.    We AFFIRM.

                          I.    BACKGROUND

A.   Factual Background

     Plaintiffs-Appellants Terry Stewart and Cedric Emanuel

(collectively “appellants”), both of whom are African American,

are machinists employed by Defendant-Appellee Union Pacific

Railroad Company (“Union Pacific”).     They work at the Settegast

locomotive shop, located in Houston, Texas.

     On July 10, 2001, a white Union Pacific employee circulated

an e-mail entitled “New York City – revised high school

proficiency exam.”   This e-mail presents a series of math

problems built around situations that reflect demeaning



     *
          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.

                                - 2 -
stereotypes of African Americans and other minority groups.     The

employee responsible for distributing the e-mail was disciplined,

receiving five days of unpaid suspension and two years of

probationary employment.

     To counter what they felt was an inadequate response to the

e-mail incident, as well as a generally discriminatory work

environment, on September 27, 2001, the appellants, other Union

Pacific employees, and several community members participated in

a rally to protest what they viewed as the disparate treatment of

white and minority employees at the Settegast facility.   The

rally was peaceful and, except for a brief incident, did not take

place on Union Pacific property.

     On October 2, 2001, Union Pacific sent a letter to the

employees’ union stating that the rally violated company policy

because it took place on Union Pacific property.   The letter went

on to list the employees, including the appellants, who

participated in the rally while on Union Pacific property.

Despite the letter, no disciplinary action was taken against any

of the employees mentioned in the letter.

     On October 17, 2001, Stewart, Emanuel, and a third employee,

Leopoldo Ramirez, left the Settegast facility for lunch without

apprising their supervisor.   Employees at the Settegast facility

are allowed to leave for lunch, but must first inform their

supervisor.   Whether they leave the facility or not, employees

are limited to twenty minute lunch breaks.   The three employees

                               - 3 -
were gone for one hour and twenty minutes.     They claimed that car

problems delayed their return and that they unsuccessfully

attempted to telephone their supervisors to inform them of the

delay.

     On October 19, 2001, the appellants and Ramirez received

letters informing them that they were being charged with leaving

company property without notifying their supervisors and failing

to correct their time sheets to account for the extra hour lost

on their lunch trip.    The letters informed the employees that,

pending an investigation, they faced a Level 5 disciplinary

action, meaning they could be terminated.1    However, if the three

employees waived their rights to an investigation, they would

only face a Level 2 disciplinary action.     A Level 2 sanction

amounts to a year of probationary employment.     Part of this deal

was that the offer was only good if all three employees and a

fourth employee, who was facing discipline for an unrelated

incident but also participated in the September 27 rally, agreed

to accept the deal.    All four employees accepted the deal.    As a

result, Stewart received one year of probation.     Because Emanuel

was already on a Level 2 sanction for a previous violation of

company policy, he was upgraded to a Level 3 sanction.     In

addition to facing a year of probation, he was also suspended

     1
          Union Pacific has a formal disciplinary system in which
various violations of company rules correspond to different
discipline levels. Higher discipline levels correspond to more
severe punishment.

                                - 4 -
from work without pay for five days.

B.   Procedural Background

     In early 2002,2 the appellants filed charges with the United

States Equal Employment Opportunity Commission (“EEOC”), alleging

that they were discriminated against based on their race and that

they were punished in retaliation for their participation in the

rally.    Following receipt of their right to sue notices from the

EEOC, on December 19, 2002, the appellants brought separate suits

in the United States District Court for the Southern District of

Texas.3   They asserted claims of unlawful racial discrimination

and retaliation under Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e, and the Civil Rights Act of

1866, 42 U.S.C. § 1981.4   They additionally brought state law

claims of negligent supervision, negligent retention, and

intentional infliction of emotional distress.

     Following discovery, Union Pacific filed a motion for

summary judgment in each cases.   The court granted Union

Pacific’s motion.   Stewart and Emanuel each filed a notice of

     2
          Emanuel filed his claim on January 29, 2002.   Stewart
filed his claim on February 5, 2002.
     3
          Although the appellants brought separate suits that
were heard by different judges, they were represented in district
court by the same attorney who filed substantially similar
pleadings in both cases.
     4
          In its motions for summary judgment, Union Pacific
addressed a disparate impact claim. However, in looking at the
appellants’ original complaints, the appellants did not propound
this cause of action. Thus, we do not consider it here.

                                - 5 -
appeal, and they later chose to consolidate their appeals.    The

appellants appeal only the district court’s judgments as to the

Title VII claims.

                      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.    Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); FED.R.CIV.P. 56 (c).   The initial burden to demonstrate

the absence of a genuine issue concerning a 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.     Id.

B.   The McDonnell Douglas Framework

     The burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), governs the

appellants’ disparate treatment and retaliation claims.     See

Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir.

2000) (“As this Court has held, the McDonnell Douglas test

applied to Title VII disparate treatment cases is also applicable


                                - 6 -
to Title VII unlawful retaliation cases.”).   Under the McDonnell

Douglas approach, the plaintiff has the initial burden of proving

a prima facie case by a preponderance of the evidence.     Id.   To

establish 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 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).   The prima facie case for retaliation

requires the plaintiff to show that: (1) he engaged in a

protected activity; (2) he suffered an adverse employment action;

and (3) there is a causal connection between the protected

activity and the adverse employment action.   Long v. Eastfield

College, 88 F.3d 300, 304 (5th Cir. 1996).

     The adverse employment action required under both causes of

action must be an ultimate employment decision along the lines of

hiring, granting leave, discharging, promoting, or compensating.

Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995).    Phrased

differently, an ultimate decision 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).

                               - 7 -
     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 such 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 U.S. at 143.

                           III.    ANALYSIS

     The district court found that neither appellant could prove

the prima facie case for either discrimination or retaliation.

Specifically, the court found that a sanction of one year of

probation was not an ultimate employment decision, since neither

employee faced termination, demotion, or a loss of benefits.

With respect to Emanuel’s claim, the court recognized that he

lost five days of pay as a result of his suspension.     However, it

noted that the suspension was the result of “stacking the

discipline imposed for violating the lunch policy on top of

Plaintiff’s pre-existing disciplinary level.     Even then, the

suspension is not on par with hiring, firing, failing to promote,

or reassignment with significantly different responsibilities.”



                                  - 8 -
Emanuel v. Mo. Pac. R.R. Co., Civil No. H-02-4851, slip op. at 12

(S.D. Tex. Mar. 22, 2004).

       The appellants do not argue that the district court

overlooked evidence raising a genuine issue as to whether

probation was an adverse employment action.       Instead, they attack

this court’s prior decisions on the issue of what constitutes an

adverse employment action under Title VII.       The court below

relied on Dollis, 77 F.3d at 777, for the proposition that only

ultimate employment decisions constitute adverse actions under

Title VII.       In Mattern v. Eastman Kodak Co., 104 F.3d 702, 707

(5th Cir. 1997), this court stated that absent a change in the

law, Dollis is binding precedent on all future Fifth Circuit

panels.       The appellants argue that the Supreme Court’s decision

in Ellerth represents such a change in the law.5      In Ellerth, the

Court stated that an adverse employment action must be “a

significant change in employment status.”       Ellerth, 524 U.S. at

761.       Appellants claim that this court has yet to consider

adequately how this statement should impact our Title VII

jurisprudence.

       We find the appellants’ argument unavailing.     Even if we

       5
          In their reply brief, the appellants also argue that,
at least for retaliation actions, the ultimate employment action
requirement in Title VII should be broadened so as to conform
with the requirements for a retaliation cause of action brought
under 42 U.S.C. § 1983. Because this argument was raised for the
first time in the reply brief, we deem it waived. See Teal
Energy USA, Inc. v. GT, Inc., 369 F.3d 873, 879 n.18 (5th Cir.
2004).

                                   - 9 -
were to accept, arguendo, the argument that our definition of an

adverse employment action is inconsistent with Ellerth, on its

own terms, Ellerth does not broaden the definition far enough to

cover the appellants’ probation.      As mentioned above, Ellerth

defines a tangible employment action as “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.”       Ellerth, 524

U.S. at 761.   The appellants’ probation did nothing to alter

their employment status.    On probation, they received the same

pay and held the same job responsibilities.6      The only impact the

probation had was that if the appellants violated company

policies during their year of probation, they would face stiffer

discipline for the violation than they would have if they were

not on probation.   As long as they both continued to do their

jobs and abide by company policies, the probation would have no

impact on them whatsoever.       Thus, Ellerth is of no help to

appellants.

                           IV.     CONCLUSION

     For the foregoing reasons, the judgments of the district

court are AFFIRMED.


     6
          For the reasons stated by the district court, we find
that Emanuel’s loss of five days of pay does not impact our
“adverse employment action” analysis. The discipline solely
attributable to the October 17 lunch incident did not result in
his loss of pay.

                                  - 10 -
