                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                 IN THE UNITED STATES COURT OF APPEALS             October 3, 2003

                         FOR THE FIFTH CIRCUIT                  Charles R. Fulbruge III
                                                                        Clerk


                                No. 03-30214
                              Summary Calendar



MANJIT S KANG,

          Plaintiff-Appellant,

                                   versus

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY; LOUISIANA STATE
UNIVERSITY DEPARTMENT OF AGRONOMY,

          Defendants-Appellees.



             Appeal from the United States District Court
                 for the Middle District of Louisiana
                       USDC No. 00-CV-906-C-M-1


Before HIGGINBOTHAM, EMILIO M. GARZA and PRADO, Circuit Judges.

PER CURIAM:*

     Appellant Manjit S. Kang appeals the district court’s grant of

Appellee’s     motion   for    summary    judgment   on   his    employment

discrimination and hostile work environment claims. For the reasons

stated below, we AFFIRM the district court.

                                     I.

     Since 1986, Kang has worked as a professor in the Department


     *
      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this opinion should not be published and is not precedent except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.
of Agronomy at Louisiana State University (“LSU”). In 1996, Kang

filed a claim with the Equal Employment Opportunity Commission

(“EEOC”), alleging that LSU had discriminated against him when it

rejected    his    application         to   become   Department     Head      of   the

Department of Agronomy. LSU selected another faculty member, a

white    man,   for   the   position,       and   Kang   believed      he   had    been

overlooked because he was of East Indian descent. On September 30,

1997, Kang filed a second claim with the EEOC, alleging that LSU

retaliated against him after the filing of his first claim of

discrimination. Shortly thereafter, he filed his first suit in

district court, raising claims of discrimination and retaliation,

but this suit was subsequently dismissed on summary judgment.1

     On December 4, 2000, Kang filed the instant suit in district

court. Kang claimed that he had been subjected to additional

retaliation, complaining of five specific acts. First, in April

1999, he received a poor performance evaluation from Freddie

Martin, the Head of the Department of Agronomy. Second, while he

was out of the country on a lecturing assignment, he was “written

up” by     Appellee   for    “unacceptable        conditions”     in    one   of   his

research areas. Third, he received a less-than-average pay raise of

3% in July, 1999, making him the lowest paid professor in the

department. Fourth, Appellee failed to nominate him for a teaching

award, even       though    he   had    been    nominated   in   previous      years.

     1
       See Kang v. State of Louisiana, 229 F.3d 1147 (Table) (5th
Cir. 2000), cert. denied 531 U.S. 1126 (2001).

                                            2
Finally, the Department Head “unfairly and unjustly” criticized him

at a faculty meeting on January 14, 2000 in front of his peers.

                                 II.

     The district court concluded that Kang could not make out a

prima facie case of retaliation under Title VII of the Civil Rights

Act of 19642 and granted summary judgment for Appellee because none

of the acts Kang complained of constituted “ultimate employment

acts.”3    We find no fault in the district court’s conclusion.

     To state a claim of retaliation under Title VII,     plaintiff

must demonstrate: “(1) that she engaged in activity protected by

Title VII, (2) that an adverse employment action occurred, and (3)

that a causal link existed between the protected activity and the

adverse employment action.”4 In Mattern v. Eastman Kodak Co., we

concluded that only “ultimate employment decisions” - decisions

relating to “hiring, granting leave, discharging, promoting, and

compensating” - satisfy the second prong of this test.5 To satisfy

this standard, the action complained of must “have more than a

‘mere tangential effect on a possible future ultimate employment


     2
      42 U.S.C. § 2000e-3(a).
     3
       Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.
1997) (“‘Ultimate employment decisions’ include acts ‘such as
hiring,    granting    leave,   discharging,    promoting,   and
compensating.’”).
     4
       Evans v. City of Houston, 246 F.3d 344, 352 (5th Cir.2001)
(quoting Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir.1996)).
     5
         Mattern, 104 F.3d at 707.

                                     3
decision.’”6 Thus, “‘interlocutory or mediate’ decision[s] which

can lead to an ultimate decision” are insufficient to support a

prima facie case of retaliation.7

     Under this standard, none of the actions that Appellant

complains       of,   even   if   true,8 qualify   as   “ultimate   employment

decisions.” Our decisions reject the proposition that his first

complaint - that he received a poor performance evaluation -

qualifies as an adverse employment decision.9 Similarly, the other

actions allegedly taken by Appellee - failing to nominate him for

a teaching award, unjustly criticizing him in front of his peers at

a faculty meeting, and writing him up for not keeping his research

area clean - do not “constitute ‘adverse employment actions’

because of their lack of consequence.”10

     Kang’s final allegation, however, is a closer question. Kang

claims that, in July 1999, he was given a less-than-average pay



     6
       Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d
512, 519 (5th Cir.2001) (quoting Walker v. Thompson, 214 F.3d 615,
629 (5th Cir.2000)).
     7
          Mattern, 104 F.3d at 708 (5th Cir. 1997).
     8
       For purposes of our review of the district court’s grant of
summary judgment, we accept as true Appellant’s allegations. See
Casey Enterprises v. American Hardware Mutual Insurance Co., 655
F.2d 598, 601-02 (5th Cir. 1981). Appellee, of course, denies that
Kang’s filing of discrimination charges in any way affected their
interaction with him.
     9
          Mattern, 104 F.3d at 708.
     10
          Id.

                                         4
raise,    causing   him   to   be   the    lowest   paid   professor   in   his

department. In Fierros v. Texas Department of Health, we explained

that a denial of a pay increase can be an “ultimate employment

action,” despite our suggestion in Mattern to the contrary.11 In the

present case, however, it is undisputed that Appellant did receive

a pay raise and that his raise was both substantial and larger than

that received by some of his colleagues.12 Although we have never

explained precisely when denials of pay raises constitute ultimate

employment decisions, under the circumstances of this case, we

cannot say that Kang has suffered an adverse employment action.

     Appellant candidly admits that our prior decisions compel this

conclusion. He argues, however, that our approach to Title VII

retaliation cases is unduly restrictive and asks that we endorse

the broader rule adopted in some other circuits.13 Indeed, we have

ourselves noted that “the continuing vitality of the ‘ultimate

employment decision’ doctrine is questionable in the light of”




     11
       274 F.3d 187, 193 (5th Cir. 2001) (“In cases since Mattern,
we have held that a denial of a pay increase and similar actions
are ‘ultimate employment decisions.’”).
     12
       Kang admits that he received a raise of 3%. Others on the
LSU faculty received raises ranging from 0% to 7%.
     13
       See, e.g., Von Gunten v. Maryland, 243 F.3d 858, 865 (4th
Cir. 2001); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456
(11th Cir. 1998); Knox v. Indiana, 93 F.3d 1327, 1334 (7th
Cir.1996); Berry v. Stevinson Chevrolet, 74 F.3d 980, 984-86 (10th
Cir. 1996); Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st
Cir.1994); Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987).

                                       5
recent    Supreme    Court   decisions.14       Nonetheless,    “[i]t   is

well-established in this circuit that one panel of this Court may

not overrule another” unless the prior decision “‘is overruled,

expressly or implicitly, by either the United States Supreme Court

or by the Fifth Circuit sitting en banc.’”15 Accordingly, we decline

Kang’s invitation to alter our approach to Title VII retaliation

claims.

                                   III.

     In addition to his claim of retaliation, Kang contends that

the district court erred in dismissing his claim that Appellee’s

actions created a “hostile work environment.” To satisfy the

requirements of a claim for hostile work environment, however, a

plaintiff   must    demonstrate   that    an   employer’s   discriminatory

actions were “sufficiently severe or pervasive that they . . .

alter[ed] the conditions of employment and . . . create[d] an

abusive working environment.”16 The actions that Kang complains of,


     14
      See Felton v. Polles, 315 F.3d 470, 486-87 (discussing
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and
Faragher v. City of Boca Raton, 524 U.S. 775 (1998)); see also
Watts v. The Kroger Co., 170 F.3d 505, 510 n.4 (5th Cir. 1999)
(expressly declining to reach the question whether Burlington’s
definition of “tangible employment actions” is identical to
Mattern’s definition of an “adverse employment action”).
     15
       Central Pines Land Co. v. United States, 274 F.3d 881, 893
(5th Cir. 2001) (quoting United States v. Kirk, 528 F.2d 1057 (5th
Cir. 1976)).
     16
       DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591
(5th Cir. 1995).


                                    6
while potentially inappropriate, do not satisfy this standard.

                                         IV.

     Because      none   of   the   actions      on    which    Kang   bases     his

retaliation claim rises to the level of an “ultimate employment

decision,”   he    has   failed     to    make   a    prima    facie   showing    of

retaliation. He has also failed to demonstrate that the Appellee’s

actions were pervasive or severe enough to create a hostile work

environment. For these reasons, the judgment of the district court

below is AFFIRMED.




                                          7
