     Case: 11-30300     Document: 00511610273         Page: 1     Date Filed: 09/22/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 22, 2011

                                     No. 11-30300                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



ANDRE TURNER

                                                  Plaintiff-Appellant
v.

NOVARTIS PHARMACEUTICALS CORPORATION

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CV-175


Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
        Andre Turner, proceeding pro se, appeals the district court’s granting of
summary judgment to the defendant on all of his Title VII claims. WE AFFIRM.
                                    BACKGROUND
        Andre Turner, an African American male, worked as a pharmaceutical
representative for Novartis Pharmaceuticals starting in 2002. After Hurricane
Katrina, Turner’s sales numbers fell and he was ranked in the bottom ten


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 11-30300

percent of Novartis national employees. Turner contends that the reason for this
decline was that his sales area, Louisiana, was devastated by the hurricane. In
August 2007, Novartis placed Turner on a 90 day Performance Improvement
Plan (PIP), which was extended by 30 days in November 2007 because of the
time Turner spent on a scheduled vacation.
      While Turner was on PIP, his sales partner was Roberta Power, a white
female. Turner claims that Power was never placed on a PIP despite her failure
to meet her quota. Power also allegedly had worse sales numbers than the
Appellant. Turner filed an EEOC Charge alleging that he was the victim of
discrimination.
      After Turner filed his EEOC complaint, Novartis conducted an
investigation of alleged violations of expense account protocol by Turner. Turner
had made a remark to his supervisor that indicated that Turner allowed his
customers to order lunch on Turner’s expense account when Turner was not
present. This activity is considered misuse of the expense account. While the
investigation was ongoing, Turner told Power that “if someone did something so
despicable has [sic] to cause someone to loss [sic] their livelihoods they could
come up missing.” Turner claimed he did not know that Power was involved in
the expense account investigation. Nevertheless, Power felt that Turner was
threatening her because of her role in the investigation and informed her
supervisor. Novartis flew Turner to corporate headquarters for an interview
concerning this threatening remark. After this interview Turner was fired for
admittedly making the statement in violation of company policy. Turner filed
another EEOC Charge after his termination alleging that he was fired in
retaliation for his first EEOC Charge.
      Turner filed suit against Novartis claiming racial discrimination, hostile
work environment, and retaliation.       The district court entered summary
judgment for the defendant and Turner appeals.

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                                  No. 11-30300

                                 DISCUSSION
      This court reviews the grant of summary judgment de novo, applying the
same standards as the district court. Fed. R. Civ. Proc. 56.
I. Discrimination
      The district court properly entered summary judgment to Novartis on
Turner’s discrimination claim. Under Title VII, a prima facie case of
discrimination must establish that (1) the plaintiff is a member of a protected
class; (2) the plaintiff was qualified for his position; (3) he suffered an adverse
employment action; and (4) he was treated less favorably than a similarly
situated employee not in the same protected class. See McDonnell Douglas Corp.
v. Green, 411 U.S. 793, 802 (1973).
      The adverse employment action must be an “ultimate employment
decision.” In the Fifth Circuit, an ultimate employment decision includes such
things as “hiring, granting leave, discharging, promoting, or compensating.”
McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir. 2007). Title VII does not
cover “every decision made by employers that arguably might have some
tangential effect upon those ultimate decisions.” Banks v. E. Baton Rouge Parish
Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003) (quoting Burger v. Cent. Apartment
Mgmt., 168 F.3d 875, 878 (5th Cir. 1999)). The district court was correct to find
that placing an employee on PIP is not an ultimate employment decision. There
is no evidence that Turner was demoted or received reduced compensation due
to the PIP. Thus, Turner failed to establish a prima facie case of discrimination
because he failed to show that a PIP was an ultimate employment decision.
II. Hostile Work Environment
      The district court correctly ruled that Turner did not exhaust his
administrative remedies in relation to his hostile work environment claim.
Since long before McCain v. Lufkin Ind., Inc., 519 F.3d 264, 273 (5th Cir. 2008),
it has been clear that an employee must file his charge with the EEOC and

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                                 No. 11-30300

exhaust administrative remedies by requesting an investigation of the facts he
claims support a Title VII claim. Exhaustion must precede a lawsuit. Turner
filed two EEOC charges, one alleging discrimination and one alleging retaliation.
Neither of the two charges reasonably encompasses his new claim of a hostile
work environment. See Pacheco v. Mineta, 448 F.3d 783, 788-89 (5th Cir. 2006)
(finding that the scope of an EEOC charge is both the charge itself and the
investigation which can “reasonably be expected to grow out of the charge of
discrimination” (citation omitted)). Because Turner did not exhaust his
administrative remedies, summary judgment was proper on the hostile work
environment claim.
III. Retaliation
      The district court properly granted summary judgment to the defendant
on Turner’s retaliation claim. Under Stewart v. Miss. Transp. Comm’n, 586 F.3d
321, 331 (5th Cir. 2009), a plaintiff must establish a prima facie case of
retaliation by showing: (1) he participated in a activity protected by Title VII,
(2) he “suffered an adverse employment action by [his] employer, and (3) there
is a causal connection between the protected activity and the adverse action.”
If the plaintiff establishes this prima facie case, the burden then shifts to the
employer to give a “legitimate non-discriminatory reason for termination.”
Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999). If the
employer can provide such a reason, then the plaintiff must prove that the
employer’s grounds for termination were pretextual. Id.
      Even if Turner may have established a prima facie case of retaliation,
Novartis provided a legitimate non-discriminatory reason for termination: his
threat upon Power. Turner does not provide any evidence that this reason was
pretextual.   Under the burden shifting framework of McDonnell Douglas,
summary judgment for the defendant was justified. See LeMaire v. La. Dep’t of
Transp. & Dev., 480 F.3d 383, 393 (5th Cir. 2007).

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                                  No. 11-30300

      After a careful review of the briefs, district court opinion, and the record,
we find no reversible issue of law or fact.
                                                                    AFFIRMED.




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