                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit                    June 18, 2007

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 05-20909




                               LESTER LEE,

                                                    Plaintiff-Appellant,


                                  VERSUS


  DEPARTMENT OF VETERANS AFFAIRS; ANTHONY PRINCIPI, SECRETARY,
                 DEPARTMENT OF VETERANS’ AFFAIRS


                                                    Defendants-Appellees



             Appeal from the United States District Court
         For the Southern District of Texas, Houston Division



Before DAVIS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Lester Lee (“Lee”) appeals the district court’s order granting

summary judgment in favor of his employer, Defendant-Appellee

Department     of   Veterans   Affairs   (“DVA”),   on   his    Title     VII

retaliation and race discrimination claims.         For the reasons that



     *
      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this opinion should not be published and is not precedent except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-
follow, we AFFIRM in part and VACATE and REMAND in part.

                                            I.

       Lee is an African-American male who began working for the DVA

in October 1989.             Lee worked in the Customer Service/Hardware

Maintenance Unit (“CS/HMU”) servicing personal computers, video

monitors, and other electronic equipment.

       In July 1998, Lee and two other African-American employees

filed a grievance against the DVA, claiming that white employees

were       being   favored    and   pre-selected      for    desirable     positions.

Specifically, Lee alleged that the DVA had improperly failed to

promote him to the position of “GS-12 Lead Electronic Tech” (“GS12-

LET”).1

       As union members, all three claimants were subject to a

collective bargaining agreement which set out an internal procedure

for employment grievances.            This grievance procedure provided an

alternative to the filing of a formal complaint with the DVA’s

Equal       Employment   Office     (“EEO”)       under    Title    VII   procedures.

According to the terms of the collective bargaining agreement,

employment grievances that were not successfully resolved by the

internal       DVA   procedures      were        subject    to   mandatory     binding

arbitration. Lee and his co-claimants pursued their claims through

the    grievance      procedure     and   then,      after   that    process   proved

unsuccessful, through binding arbitration.

       1
      Lee’s position at the time of the suit was GS-11
Electronics Tech.

                                          -2-
     On July 5, 2001, while not attributing promotion decisions to

racial discrimination, an arbitrator found in favor of Lee and the

one remaining co-claimant on their claim that certain individuals

had been preselected and favored for promotions.2         As a result, in

a written order, the arbitrator awarded Lee and his co-claimant the

position of “GS-12 Computer Specialist” (“GS12-CS”).

     Despite this apparent victory, Lee contacted the arbitrator

and the DVA immediately after the decision was rendered to ask for

a change in the awarded position.        Lee was unsatisfied with the

GS12-CS position, and insisted on being designated as a GS12-LET.3

In correspondence with Lee’s union rep, Abe Gordon, Dr. Derek

Drawhorn, a DVA representative, stated that the DVA was willing to

adjust Lee’s arbitration award through a joint stipulation, thus

leaving Lee in essentially his CS/HMU job - the position he held

before the   grievance    and   arbitration   -   but   with   his   desired

designation of GS12-LET. Lee claims that based on such assurances,

which went on until March 2002, he did not file a timely appeal of

the arbitrator’s award.

     Sometime between January 2001 and January 2002, as part of an


     2
      For reasons that are unexplained, one co-claimant did not
remain a party to the arbitration proceeding to its conclusion.
     3
      Lee says he considered the GS12-CS position to be a lesser
position and concluded that the award of that position by the
arbitrator was a mistake. There is no explanation from the
parties as to how the arbitrator arrived at this particular award
and no explanation from Lee about the specific deficiencies in
the GS12-CS position as compared with the GS12-LET position.

                                   -3-
agency restructuring, the DVA abolished the CS/HMU – the unit in

which Lee had previously worked and to which he desired to return.

In the process, the DVA eliminated Lee’s previous electronic tech

position, leaving the DVA with no more such positions.                Later, in

March 2002, Lee says he officially received word that the DVA was

no longer interested in adjusting the arbitrator’s award and giving

him a GS12-LET position.

       Along with his difficulties in negotiating a revision of the

arbitrator’s     award,    Lee   encountered    other     problems    after   his

arbitration award.        For instance, Lee claims he was told he would

have to receive training and certification for his new position and

that he must complete the training in two years.              He alleges that

two similarly situated white employees who had not complained about

racial discrimination were given four years to complete the same

training.     He also alleges that these white employees were given

access to increased training opportunities and more high level

meetings with supervisors than he was.            Finally, Lee claims that

white    employees   were    given   preferences     in    picking    desirable

offices, while he was placed in an office with student interns.

       In response to these problems, Lee filed a formal complaint

with the DVA’s EEO on April 10, 2002.          In the complaint, he alleged

that    the   following    unfavorable     actions   were    either    racially

motivated or reprisal for the 1998 grievance and the resulting 2001

arbitration award: (1) change of assigned duties; (2) transfer to

an undesirable work area; (3) removal from his career choice; (4)

                                     -4-
imposition of a certification requirement; (5) refusal to correct

the 2001 arbitration award; (6) abolition of his job position; and

(7) failure to train.

     In a letter dated April 23, 2002, the EEO notified Lee that it

had accepted his claim regarding discrimination and retaliation on

the issue of training and it issued a right to sue letter based on

that claim.   The EEO, however, rejected Lee’s other claims.    The

EEO counselor explained that because actions 1-5 were all related

to and/or had been addressed in the 2001 arbitration decision and

because Lee had elected to pursue a union grievance, he was

precluded from collaterally pursuing those same complaints through

the EEO/Title VII statutory process.    Further, the EEO dismissed

action 6, which concerned the abolition of Lee’s former job and

department, because Lee had failed to contact an EEO counselor

within 45 days of the action.

     Lee later filed this lawsuit.      However, instead of simply

pursuing a discrimination or retaliation claim based on inadequate

training, Lee reurged all the allegations presented to the EEO,

including those that were rejected.   In response to Lee’s suit, the

DVA filed a motion for summary judgment, asserting the correctness

of the EEO’s conclusion that the majority of Lee’s allegations were

barred from consideration. On the subject of training disparities,

the one allegation that the EEO concluded would provide an adequate

basis for a Title VII claim, the DVA argued that Lee’s allegation

did not constitute an “adverse employment action” under this

                                -5-
circuit’s precedent.

      Agreeing       largely          with    the     DVA’s        legal    arguments,      the

magistrate        judge    issued       a    memorandum       to     the    district     court

recommending dismissal of all claims.                      The district court adopted

the magistrate’s recommendations and issued a summary judgment

order in favor of the DVA.

      In his appeal to this court, Lee argues that the district

court erred in (1) concluding that he was barred from pursing most

of   his   claims;        (2)    failing      to     apply    principles      of    equitable

estoppel     to    avoid        the   time     bar    on     his    claim    based     on   job

abolishment;        (3)     dismissing         his     retaliation         claim;    and    (4)

dismissing his discrimination claim.

                                               II.

      This   court        reviews      a     district      court's     grant    of   summary

judgment de novo, applying the same standard as the district

court.4    Summary judgment should be granted only when there is no

genuine issue of material fact and the moving party is entitled to

judgment as a matter of law.5                The evidence should be viewed in the

light most favorable to the nonmoving party.6

                                              III.



      4
      Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396, 399 (5th
Cir. 1996).
      5
       Fed. R. Civ. P. 56(c).
      6
      Am. Home Assurance Co. v. United Space Alliance, 378 F.3d
482, 486 (5th Cir. 2004).

                                               -6-
1.     Did the district court err in barring Lee from asserting

certain claims in his lawsuit?

       By filing a written grievance, Lee made a formal election to

pursue his claim through the negotiated grievance procedure.7

Under grievance procedures outlined in the United States Code,

which the parties agree apply to the DVA, this election foreclosed

Lee from pursuing the same matters in a lawsuit:

       An aggrieved employee affected by a prohibited personnel
       practice . . . which also falls under the coverage of the
       negotiated grievance procedure may raise the matter under
       a statutory procedure [EEO/Title VII] or the negotiated
       procedure, but not both.

5 U.S.C. § 7121(d).

       Lee asserts that he should be allowed to pursue his claims in

court because the challenged actions dismissed by the district

court (1-5 above) were not a part of the previous grievance and

arbitration but rather grew out of later conduct on the part of the

DVA.       Lee argues that representations made during post-arbitration

negotiations by the DVA induced him into foregoing his challenge of

the arbitrator’s award and that it was these false representations,

and not the arbitrator’s decision, that motivated his April 2002

charge.

       Lee’s argument is unpersuasive.     The arbitration award, even

if it was mistaken, was undoubtedly the direct cause of at least


       7
      See 29 C.F.R. § 1614.301 (“An election to proceed under a
negotiated grievance procedure is indicated by the filing of a
timely written grievance”).

                                    -7-
four out of the five challenged acts: (1) the change of Lee’s

duties;    (2)      removing      him     from     his   career    choice;     (3)    the

certification requirement; and (4) the award itself.                           We have

previously explained that “a federal employee [with exclusive union

representation] who alleges employment discrimination must elect to

pursue his claim under either a statutory procedure [(e.g., the EEO

process)]     or      a   union-assisted         negotiated    grievance      procedure

[unless       the         grievance       procedure       specifically         excludes

discrimination claims]; he cannot pursue both avenues, and his

election is irrevocable.”8              Thus, the only proper challenge to the

arbitrator’s award was an appeal of the arbitrator’s order.                           Lee

has   cited      no       authority     in    support     of   his     argument      that

misrepresentations by the DVA relieved him either of his binding

initial    election         to   pursue      these   matters      in   the   negotiated

grievance procedure or his obligation to appeal an unsatisfactory

award.

      As for Lee’s allegation concerning his assignment to an

undesirable office space, Lee implies that his office assignment

did not grow directly out of the arbitration decision, i.e., that

not all computer specialists sit in the same office or group of

offices.      The DVA does not dispute this point.                      As such, this

matter was not “raised . . . in a negotiated grievance procedure”


      8
      Maddox v. Runyon, 139 F.3d 1017, 1021 (5th Cir. 1998)
(brackets and parentheses in original) (citing in part 5 U.S.C. §
7121(d)).

                                             -8-
pursuant to 29 C.F.R. § 1614.107(a)(4), and Lee should have been

allowed to have this act considered in the course of his Title VII

proceedings.     As a result, the district court erred in failing to

consider this action.

2.   Did the district court err in precluding Lee from raising the

abolishment of his old employment unit in his lawsuit?

      The    Code   of   Federal    Regulations     provides    that    federal

employees “must initiate contact with a[n] [EEO] Counselor within

45 days of the date of the matter alleged to be discriminatory or,

in the case of personnel action, within 45 days of the effective

date of the action.”9

      Lee concedes that he did not file a complaint regarding the

abolishment of his old job within the 45 day time limitation.

However, Lee argues that the DVA’s representations to him that he

would be assigned to his old duties, but as a GS12-LET, prevented

him from learning that the abolishment of his position was a

discriminatory/retaliatory act and thus his complaint based on this

act should be preserved.

      We    disagree.      Lee     does    not   clearly   explain     how   any

misrepresentations       from      the     DVA   served    to   conceal      the

discriminatory or retaliatory nature of the DVA’s elimination of

his old department.       He does not allege, for instance, that the

full scope or effect of the reorganization was in any way concealed


      9
          29 C.F.R. § 1614.105(a)(1).

                                         -9-
during the relevant limitations period. Further, Lee fails to cite

a single decision to support a finding that either 29 C.F.R. §

1614.105(a)(2)’s tolling provision or general equitable tolling

principles should be applied to this case.           The district court did

not err when it refused to consider this allegation.

3.   Did the district court err in finding disparities in training

could not support a retaliation charge?

      To sustain a retaliation claim, the employee’s prima facie

case must show: (1) that the employee engaged in a protected

activity; (2) that an adverse employment action occurred; and (3)

that a causal link existed between the protected activity and the

adverse action.10         The district court, relying on precedent from

this circuit, found that Lee had failed to meet the second prong of

the prima facie case because his failure to train claim did not

constitute an “adverse employment action.”

      The Supreme Court recently clarified the requirements for

proving retaliation under Title VII in Burlington Northern & Santa

Fe Railway Co. v. White.11        The Court rejected the approach taken

by several circuits, including this one, that required plaintiffs

to demonstrate an “ultimate employment decision” to satisfy the

“adverse employment         action”   element   of   a   retaliation   claim.12

      10
      Baker v. American Airlines, Inc., 430 F.3d 750, 754 (5th
Cir. 2005).
      11
           126 S.Ct. 2405 (2006).
      12
           Id. at 2414.

                                      -10-
Instead, the Court explained that in order for an employer’s acts

to constitute actionable retaliation: “[a] plaintiff must show a

reasonable      employee    would   have    found   the    challenged   action

materially adverse, which . . . means it might have dissuaded a

reasonable       worker    from   making    or   supporting    a   charge   of

discrimination.”13

      The district court conducted its analysis of the training

claim under the old, now rejected standard.               For that reason, we

vacate the award of summary judgment on Lee’s retaliation claim and

remand this case to the district court so it can reconsider this

issue consistent with Burlington Northern.           On remand, in addition

to reevaluating the allegation regarding training, the district

court should consider Lee’s allegation regarding inferior office

placement.

4.   Did the district court err in dismissing Lee’s discrimination

claims?

      To establish a prima facie case of discrimination, a plaintiff

must provide evidence that he “(1) is a member of a protected

class; (2) was qualified for [his] position; (3) was subject to an

adverse employment action; and (4) was replaced by someone outside

the protected class, or, in the case of disparate treatment, shows

that others similarly situated were treated more favorably.”14

      13
           Id. at 2415.
      14
      Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d
507, 512-13 (5th Cir. 2001).

                                     -11-
       As in the retaliation context, we have required that an

employee show an ultimate employment action, such as hiring,

granting       leave,        discharging,       promoting,      and     compensating,    to

establish       a     prima     facie    case    under      Title     VII’s    substantive

discrimination provisions.15                  Lee argues that the Supreme Court’s

recent       Burlington         Northern      decision,       while      discussing    only

retaliation claims, logically requires this court to relax the

standard applicable to determining whether an employer’s acts

constitute an “adverse employment action” in the discrimination

context.

       We need not resolve today any claimed tension between the

Burlington          Northern      decision       and     this     circuit’s       “ultimate

employment decision” standard. The report of the magistrate judge,

adopted by          the    district     court,       includes    no     factual   or   legal

analysis of Lee’s discrimination claim.                       On remand, the district

court should include an analysis of the parties’ summary judgment

evidence       on     this     issue    and    apply    the     Title    VII   substantive

discrimination provision to those facts.

                                               IV.

       For the foregoing reasons, the district court’s grant of

summary judgment in favor of DVA is AFFIRMED in all respects except

with        respect       to   the     dismissal       of     Lee’s     retaliation     and

discrimination claims based on inadequate training and inferior

       15
            See Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir.
2004).

                                              -12-
office placement.   We VACATE the dismissal of those claims and

REMAND the case to the district court to reconsider the claims in

light of Burlington and consistent with this opinion. The district

court is free to evaluate whether Lee has satisfied the causation

and other elements of his discrimination and retaliation claims.

AFFIRMED IN PART.

VACATED AND REMANDED IN PART.




                                -13-
