                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   April 8, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-30951
                          Summary Calendar



STEVY Q. GREENE

                      Plaintiff - Appellant

v.

DAIMLERCHRYSLER SERVICES OF NORTH AMERICA

                      Defendant - Appellee



          Appeal from the United States District Court
              for the Eastern District of Louisiana
                        No. 02:03-CV-1058T


Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit
Judges.

PER CURIAM:*

     Plaintiff-Appellant appeals the district court’s grant of

summary judgment in favor of Defendant-Appellee in this Title VII

retaliation action.   For the following reasons, we AFFIRM.

                           I.   BACKGROUND

     Plaintiff-Appellant Stevy Greene, an African-American male,



     *
        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that this opinion should not be published and is not precedent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-
began working for Defendant-Appellee DaimlerChrysler Services of

North America (“DCS”) in October 1996 as a contract worker.    In

August 1997, Greene began working for DCS in its New Orleans Zone

office in an entry-level position in the customer service

(collections) department.   In early 2000, DCS initiated “Project

Agility,” a company-wide reorganization of its customer service

functions.   During this process, the customer service functions

were removed from twenty-six Zone offices across the country, and

they were consolidated into four customer service centers.     Those

centers were located in Troy, Michigan; Dallas, Texas;

Philadelphia, Pennsylvania; and Kansas City, Kansas.   The New

Orleans Zone was assigned to the Kansas City Customer Service

Center.   The New Orleans employees were given notice of the

impending move, which was scheduled for June 2002, and were

advised that their jobs in New Orleans would no longer exist

after the effective date of the move.   All employees, including

Greene, were informed that they would have the option to transfer

to Kansas City in their current positions, attempt to secure

other positions within DCS through the normal posting process, or

accept a lay off and the standard lay-off package.

     According to George Tallant, Zone Manager of the New Orleans

Zone, after Greene’s March 7, 2002 meeting with the Kansas City

management, Greene said that he would rather move to Dallas but

that he would accept the transfer to Kansas City if he was unable

to secure another position within the company prior to his

                                -2-
transfer date.1   Greene attempted to secure a position in Dallas,

but his efforts were unsuccessful.    On April 6, 2002, Greene

received $8,506.40 in relocation benefits from DCS.    On April 17,

2002, Greene sent an email to Arnita Wilson in DCS’s human

resources department, stating: “If you are not able to relocate

me to Dallas, I will still report to Kansas City on April 22,

2002 and give 100 percent.”

     On May 30, 2002, Greene sent an email to Tom McAlear, an

operations manager for DCS, complaining that his requests for

promotion and transfer to Dallas had been denied.    That email

made references to equality and unfair treatment but did not

expressly indicate that Greene had been discriminated against

because of his race.2   On June 5, 2002, Greene spoke with Wilson

     1
          Thus, Greene declined the severance package.
     2
          The email stated, in relevant part:

     It has been brought to my attention that upon recent
     positions in which I submitted for within the company,
     were rejected. [sic] The reason being, I was told that
     I am under-qualified for the positions. I know that I
     am indeed qualified, maybe over-qualified but certainly
     not under. It appears that other people in my
     department are being promoted or transferred without a
     degree and I am being overlooked for whatever reasons.
     I feel that certain people are getting preferential
     treatment/perks. . . .
          I have always believed and still believe that
     [DSCS] is an equal opportunity employer, however I
     believe that I am not receiving a fair opportunity when
     it comes to promotions. I am not looking for any
     special favors or handouts. . . .
          I believe values and equality are the backbone of
     any corporate culture. It is the essence of a
     company’s philosophy for achieving success. Values

                                -3-
on the telephone, allegedly complaining of racial

discrimination.3

     Greene was ultimately unable to acquire a position with DCS

in Dallas.   He relocated to Kansas City, effective June 7, 2002.4

In Kansas City, he maintained the same entry-level position and

the same level of pay that he had in New Orleans.    Shortly after

moving to Kansas City, he took a leave of absence.   On June 29,

2002, Greene allegedly suffered an anxiety attack, and he has

been on total, and then partial, disability since that time.5

     On February 3, 2003, Greene filed a charge with the Equal

Employment Opportunity Commission (“EEOC”).6   He alleged that he

had been transferred to Kansas City in retaliation for his

complaints of racial discrimination and that the transfer



     provide a sense of common direction for all employees
     and equality is colorblind.
     3
          Wilson denies that Greene alleged racial discrimination
in that conversation.
     4
          Although Greene’s last day scheduled to be in New
Orleans was April 15, 2002, DCS extended his relocation date to
April 22, 2002, and then June 7, 2002, to accommodate his
business school schedule and his attempts to find a position in
the Dallas office.
     5
          Relying on an affidavit from Pamela Morgan, a human
resources consultant with DCS, the district court stated that
Greene resigned from his employment with DCS on June 19, 2003.
     6
          Greene originally filed a charge with the EEOC on June
7, 2002, the effective date of his transfer to Kansas City. The
EEOC issued a right-to-sue letter on December 4, 2002. However,
this charge was amended to include Greene’s retaliation claim on
February 3, 2003.

                                -4-
constituted a demotion.    On April 11, 2003, Greene filed this

lawsuit in the United States District Court for the Eastern

District of Louisiana, alleging retaliation in violation of Title

VII.    On August 18, 2004, the district court granted summary

judgment in favor of DCS.    Greene timely filed the instant

appeal.

                            II.   DISCUSSION

       We review a district court’s grant of summary judgment de

novo, applying the same standard as the district court.        Fierros

v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir. 2001).

Summary judgment is proper when the record, viewed in the light

most favorable to the nonmoving party, demonstrates that no

genuine issue of material fact exists and that the movant is

entitled to judgment as a matter of law.       See FED. R. CIV. P.

56(c); see also Blow v. City of San Antonio, 236 F.3d 293, 296

(5th Cir. 2001).    “The moving party is entitled to a judgment as

a matter of law [if] the nonmoving party has failed to make a

sufficient showing on an essential element of her case with

respect to which she has the burden of proof.”       Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks

omitted).

       DCS argues, and Greene does not dispute, that Greene’s

claims for retaliation are governed by the McDonnell Douglas




                                  -5-
burden-shifting framework.7    See McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973); Fierros, 274 F.3d at 191-92.       Under

this framework, “[a] Title VII plaintiff bears the initial burden

to prove a prima facie case of discrimination by a preponderance

of the evidence.”     LaPierre v. Benson Nissan, Inc., 86 F.3d 444,

448 (5th Cir. 1996) (citing McDonnell Douglas, 411 U.S. at 802);

see also Fierros, 274 F.3d at 191-92 (noting that “the plaintiff

carries the initial burden of establishing a prima facie case of

retaliation”).   A plaintiff may satisfy this burden by

demonstrating that: (1) he engaged in an activity protected by

Title VII; (2) an adverse employment action was taken against

him; and (3) a causal link existed between the protected activity

and the adverse employment action.      Fierros, 274 F.3d at 191;

Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996).

     The plaintiff’s prima facie showing of retaliation

establishes an inference of the employer’s impermissible

retaliatory motive.    Fierros, 274 F.3d at 191.     The burden then

shifts to the employer to produce a legitimate, nonretaliatory

reason for the adverse employment action.      Id.   Once the employer

produces evidence of such a reason, the plaintiff has the

ultimate burden of proving that the proffered reason is merely a

pretext for retaliation, which may be accomplished by

     7
          Accordingly, the court need not consider whether the
Supreme Court’s decision in Desert Palace, Inc. v. Costa, 539
U.S. 90 (2003), or this court’s decision in Rachid v. Jack in the
Box, Inc., 376 F.3d 305 (5th Cir. 2004), affect this case.

                                  -6-
demonstrating that the adverse employment decision would not have

occurred but for the protected activity.     Long, 88 F.3d at 305

n.4.    The jury may infer the existence of but-for causation from

the combination of the plaintiff’s evidence establishing the

prima facie case of retaliation and the plaintiff’s evidence that

the reasons given by the employer are merely pretextual.       Mota v.

Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 519-20 (5th

Cir. 2001).

       The district court granted summary judgment in favor of DCS

after finding that Greene failed to establish a prima facie case

of retaliation.    With respect to the first element, the court

noted that Greene alleged two instances of protected activity:

the May 30 email to McAlear and the June 5 telephone conversation

with Wilson.    The district court found that Greene’s email was

not a protected activity because it made only vague references to

discrimination.    However, the court concluded that whether

Greene’s comments during the telephone conference with Wilson

constituted protected activity was a question of fact.    The court

further found that Greene had failed to establish the second

element of his prima facie case because his transfer to Kansas

City was not an adverse employment action.    Finally, the court

determined that Greene failed to establish the third element as

well because he did not show a causal connection between his

allegedly protected activity and his transfer.

       Because we agree with the district court that Greene’s

                                 -7-
transfer to Kansas City did not constitute an adverse employment

action under Title VII, we find that Greene failed to establish a

prima facie case of retaliation, and we need not address the

district court’s conclusions with respect to the first and third

elements.    This court consistently has held that to present a

prima facie case for retaliation, a plaintiff must show that the

employer took an “adverse employment action” against the

plaintiff.    See, e.g., Pegram v. Honeywell, Inc., 361 F.3d 272,

281-82 (5th Cir. 2004).    In this circuit, only “ultimate

employment decisions” qualify as the adverse employment actions

necessary to establish a prima facie case of retaliation.

Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997);

see also Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)

(per curiam).    Ultimate employment decisions include hiring,

granting leave, discharging, promoting, and compensating.

Mattern, 104 F.3d at 707; see also Hernandez v. Crawford Bldg.

Material Co., 321 F.3d 528, 531-32 & n.2 (5th Cir. 2003) (per

curiam).    Demotions are also considered adverse employment

actions.    See Sharp v. City of Houston, 164 F.3d 923, 933 n.20

(5th Cir. 1999).    Furthermore, a change in one’s employment

position need not result in a reduction in pay in order to be

considered a demotion.    See id. at 933; Forsyth v. City of

Dallas, 91 F.3d 769, 774-76 (5th Cir. 1996).    Rather, an

employer’s decision to change an employee’s job position may

constitute a demotion if the new position is objectively worse.

                                 -8-
See Sharp, 164 F.3d at 933 (“To be equivalent to a demotion, a

transfer need not result in a decrease in pay, title, or grade;

it can be a demotion if the new position proves objectively

worse--such as being less prestigious or less interesting or

providing less room for advancement.”); see also Pegram, 361 F.3d

at 283 (“Circuit precedent establishes that in cases where the

evidence produces no objective showing of a loss in compensation,

duties, or benefits, but rather solely establishes that a

plaintiff was transferred from a prestigious and desirable

position to another position, that evidence is insufficient to

establish an adverse employment action.”).

     Greene argues that his transfer to Kansas City was a

demotion and therefore an ultimate employment action.    We

disagree.   Greene’s job title and pay were the same in both

Kansas City and New Orleans.   Furthermore, Greene produced no

evidence that his job in Kansas City was objectively worse than

his position in New Orleans.   To support his argument, Greene

points only to his own affidavit, which briefly describes the

differences between his duties in New Orleans and Kansas City.

Greene avers that in New Orleans he worked on overdue accounts up

to and through repossession.   However, in Kansas City, he would

work on accounts that were only thirty to forty days past due,

and then he would forward the accounts on to others.    Although

Greene claims this would be a step back to an entry level

position, he admits that his job in New Orleans was an entry

                                -9-
level position.   Moreover, Greene never refuted DCS’s evidence

that despite the differences, his duties in Kansas City were the

same as they had been in New Orleans.   For example, Jeff Andrew

Glazer, manager of the New Orleans Customer Service Department,

testified that Greene would not experience a reduction in his

duties or responsibilities after transferring to Kansas City.

Glazer stated that even if Greene were no longer to handle

accounts up to and through repossession, his responsibility level

would remain the same because he would be handling more accounts

and his duty still would be to cure delinquent accounts.   Thus,

Greene failed to show that his transfer was a demotion, and

therefore, he did not prove that he suffered an adverse

employment decision.   Consequently, Greene failed to establish a

prima facie case of retaliation, and the district court correctly

granted summary judgment in favor of DCS.

                         III.   CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.




                                -10-
