                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                    IN THE UNITED STATES COURT OF APPEALS      October 27, 2003

                           FOR THE FIFTH CIRCUIT            Charles R. Fulbruge III
                                                                    Clerk


                               No. 03-30140


RONALD EDWARD CARTER,

                                                   Plaintiff-Appellant,

versus

PAUL O’NEILL, SECRETARY, DEPARTMENT
OF TREASURY,

                                                   Defendant-Appellee.

                            --------------------
               Appeal from the United States District Court
                   for the Western District of Louisiana
                                (00-CV-1125)
                            --------------------

Before JOLLY and WIENER, Circuit Judges, and ROSENTHAL,* District
Judge.

PER CURIAM:**

       Plaintiff-Appellant Ronald Carter, a white male GS-12 revenue

agent employed by the Internal Revenue Service (“IRS”), filed the

instant reverse discrimination employment action against Defendant-

Appellee Paul O’Neill, Secretary, U.S. Department of the Treasury,

asserting that he was denied a promotion because of his race and

sex.       Carter claims (1) institutional discrimination arising from

       *
      District Judge of the Southern District of Texas, sitting by
designation.
       **
        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this opinion should not be published and is not precedent except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.
the       IRS’s   strategic   initiative   ERR-16     as   systematically

discriminating against white males since 1990, in violation of

Title VII of the Civil Rights Act of 1964,1 and the Fifth Amendment

of the United States Constitution;2 and (2) discrimination in

violation of Title VII for failure to promote him to fill one of

three vacant GS-13 revenue agent positions in the Coordinated

Examination Program (“CEP”) Group in Jackson, Mississippi.          In a

combination of sequential rulings, the district court eventually

dismissed all of Carter’s claims.        We affirm.

                                I. Analysis

      The district court’s bench trial findings of fact are reviewed

for clear error.3       The court’s legal rulings, including partial

summary judgments that in combination resulted in the dismissal of

Carter’s discrimination employment action, are reviewed de novo.4

In conducting our review, we have considered the record on appeal,

the arguments advanced by counsel in their respective appellate

briefs and in their oral arguments before this panel, and the

applicable law as cited by counsel and determined independently.




      1
          42 U.S.C. § 2000(e), et seq.
      2
          U.S. Const. amend. V.
      3
           See Quijano v. United States, 325 F.3d 564, 567 (5th Cir.
2003).
      4
       See id.; Price v. Federal Express Corp., 283 F.3d 715, 719
(5th Cir. 2002)(district court’s grant of summary judgment reviewed
de novo).

                                     2
As a result, we are in agreement with the disposition of Carter’s

case by the district court.

     Carter’s institutional discrimination claim, as stated above,

was predicated upon the alleged violations of his rights under

Title    VII    and    the   Fifth    Amendment            of     the   United     States

Constitution.          The   court   properly         dismissed         Carter’s    Fifth

Amendment      claim   because     Title       VII    is    the    exclusive     vehicle

available to federal employees claiming employment discrimination.5

     As for Carter’s Title VII claim that systematic reverse

discrimination over many years prevented him from acquiring the

experience and performance evaluations necessary to compete with

racially and sexually favored revenue agents and resulted in his

failure to obtain promotion, the district court correctly concluded

that Carter’s claim cannot stand alone as a separate cause of

action absent a causal nexus between the alleged historic or

current favoring of females and minorities and Carter’s failure to

obtain   promotion.6         The   court       also    correctly        concluded    that

     5
       See Brown v. General Servs. Admin., 425 U.S. 820, 96 S.Ct.
1961, 48 L.Ed.2d 402 (1976)(Title VII provides exclusive remedy for
claims of discrimination in federal employment); Perez v. Federal
Bureau of Investigation, 71 F.3d 513, 515 (5th Cir. 1995).
     6
      See Whalen v. Rubin, 91 F.3d 1041, 1045 (7th Cir. 1996)(mere
existence of an affirmative action policy is insufficient to prove
intentional discrimination absent evidence of a link between the
IRS’s policies and its actions towards the Title VII plaintiff);
see also Frank, et al. v. Xerox Corp., Nos. 02-20416, 02-20516,
2003 WL _____, at *___ (5th Cir. Sept. 30, 2003)(existence of
affirmative action policy, coupled with evidence that policy was
followed in the adverse employment action, constituted direct
evidence of unlawful discrimination)(citing Bass v. Bd. of County

                                           3
Carter’s inability to show such a causal nexus proves fatal to his

claim.

      Assuming, without granting, that Carter has demonstrated both

the existence of an institutionalized system of affirmative action

and its negative cumulative effect on white male revenue agents by

placing beyond their reach the necessary work experience, awards,

and relative fitness ratings, Carter has not causally connected his

own individual work experiences with his failure to obtain the

particular     promotion      here   at   issue.      This     is   perhaps    best

illustrated by Carter’s insistence that the selection panel’s

reliance on prior CEP experience in ranking the twelve applicants

for   the    three   positions,      in   combination   with     the   systematic

prevention of white male agents’ obtaining such experience in

recent      years,   constituted      a   discriminatory       practice   in    the

selection process (Carter advances a similar claim in connection

with service awards and fitness ratings). Despite this insistence,

though, Carter has not shown the specific nexus between the absence

of CEP experience in his résumé and the denial of this particular

promotion.

      Further, during all times pertinent to this inquiry, Carter

worked out of the Monroe, Louisiana office of the IRS; and during

that time, only one CEP case arose in the area served by that

office.        The   record    is    uncontradicted     that    Carter    neither


Comm’rs, Orange County, Fla., 256 F.3d 1095, 1111 (11th Cir.
2001)).

                                          4
specifically requested to participate in that CEP matter nor let it

be known generally that he had an interest in such assignments.

         Even   though        systematic   exclusion      of    white    males   from

acquiring such experience as a side effect of favoring females and

minorities      in     past     assignments      might    support       some   other,

differently situated white male GS-12 revenue agent’s claim of

discrimination in the promotion process, for the reasons above, it

does not support Carter’s own claim here.                  As he has failed to

demonstrate specific adverse consequences to him in this particular

promotion-seeking        effort,     his       claim   cannot    stand.        Merely

establishing the existence of a general pattern or practice of

discrimination such as that shown to have existed in the IRS under

strategic initiative ERR-16 and other programs to attain work force

diversity in high-level technical and management positions within

the IRS is no substitute for Carter’s satisfying the burden in this

private, non-class action lawsuit.7

     In addition, Carter has failed to show pretext in the facially

neutral selection process, conducted pursuant to the provisions of

the National         Treasury    Employees      Unions’   collective      bargaining

agreement, that resulted in the promotion of the purported racially

and sexually favored agents and Carter’s low evaluation as tenth



     7
       See Frank, 2003 WL _____, at *___ (citing Celestine v.
Petroleos de Venezuela, S.A., 266 F.3d 343, 355-56 (5th Cir.
2001)(rejecting pattern-or-practice method of proof in private,
non-class action lawsuits)).

                                           5
among the twelve applicants.8   His assertion that CEP experience is

a false or pretextual criterion in the promotion calculus for a GS-

13 revenue agent to be promoted to work in the CEP area simply

cannot be maintained.

                          II. Conclusion

     For the foregoing reasons, and those set forth by the district

court, that court’s rulings, orders, and judgments are, in all

respects,

AFFIRMED.




     8
       See Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207, 215 (1981); Price,
283 F.3d 715, 722 (5th Cir. 2002)(finding employee’s evidence of
pretext insufficient to raise a genuine issue as to whether
employer’s proffered legitimate, non-discriminatory reason was
false).

                                  6
