                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         October 14, 2005
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                        ))))))))))))))))))))))))))               Clerk

                             No. 05-10308
                           Summary Calendar
                        ))))))))))))))))))))))))))

WANDA ROBERSON,

                  Plaintiff–Appellant,

     v.

GAME STOP/BABBAGE’S,

                  Defendant–Appellee.


           Appeal from the United States District Court
            for the Northern District of Texas, Dallas



Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Appellant Wanda Roberson sued Appellee Game Stop, Inc.

(“Game Stop”), alleging race discrimination under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e (2005) (“Title

VII”) and 42 U.S.C. § 1981 (2005) and violation of the Family and

Medical Leave Act of 1993, 29 U.S.C. § 2601-2619 (2005)(“FMLA”).1



     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
     1
       Roberson also alleged violations of section 451.001 of the
Texas Labor Code, TEX. LAB. CODE ANN. § 451.001 (2005), but those
violations are not before us on appeal.
The district court granted Game Stop’s motion for summary

judgment, and Roberson appeals.   We now affirm.

I. Background

     Game Stop is a purveyor of video games and other

entertainment software headquartered in Grapevine, Texas.

Roberson, a black woman, began working at Game Stop in August of

1999 as a clerk in the Return-to-Vendor (“RTV”) department at the

company’s Distribution Center.    She received a pay raise one year

later.   In January 2001, Game Stop promoted Roberson to the

position of RTV Lead, a promotion that brought with it a raise.

In August 2002, Roberson received yet another pay raise.      At

various points, she requested training on the WMS computer

system; she received only limited training.    In November 2002,

Stephanie McKee, a white woman employed in the RTV department,

was promoted to co-Lead.

     On November 11, 2002, after McKee was promoted, Roberson

took FMLA leave to care for her injured son.    While Roberson was

absent, McKee performed Lead duties on her own.    Roberson

returned to work on December 9, 2002.   She continued to perform

her job as she had left it, and continued to work under the same

manager, Cynthia Torres.   Roberson heard rumors from co-workers

that she was no longer a Lead, but no official action was taken.

John Simmons, director of the Distribution Center, was aware of

these rumors.   There is no indication that Roberson’s salary or

benefits changed.

                                  2
     Four days later, Game Stop managers presented Roberson with

a letter indicating their intention to eliminate one of the two

Lead positions.   The company had decided to move the defective

check function, with which Roberson had been involved, out of the

RTV department.   The letter listed a variety of reasons why McKee

would remain as RTV Lead, one of which was greater familiarity

with the WMS computer system.    The letter listed several options

for Roberson: two Lead positions in other departments and a clerk

position in the RTV department.

     In the ensuing days, Game Stop managers met and determined

that Roberson should not be demoted.    They informed Roberson on

December 19, 2002 that the Lead elimination plan would not be

implemented and that she had the option to remain a Lead in the

RTV department.   Roberson was given until December 23, 2002 to

decide, and elected to remain an RTV Lead.

     On January 8, 2003, Lori Wolf, now manager of the RTV

department, met with Roberson and McKee to inform the two that

the position of Lead in the RTV department would be eliminated

due to internal restructuring.    Game Stop reduced the salaries of

both Roberson and McKee.   Roberson’s salary remained higher than

McKee’s.   The next day, McKee was given a raise to compensate her

for specific computer duties.    Both worked in the position of

clerk.   The position of Lead remained eliminated until mid-2004,

when Sharrel, a black woman, was hired to be the Lead.

     In April 2003, Roberson injured her foot.    She took leave

                                  3
again, and exhausted her FMLA-protected leave.    On June 18, 2003,

Game Stop terminated Roberson for missing work.

II. Procedural History

     Roberson filed suit against Game Stop in federal court in

the Northern District of Texas on November 20, 2003.    On January

2005, the district court issued an order granting summary

judgment in favor of Game Stop.    On February 8, 2005, the

district court granted Roberson’s motion to reconsider with

respect to the discrimination claims.    Upon reconsideration, the

court again granted Game Stop’s motion for summary judgment.

Roberson filed her notice of intent to appeal the judgment on

February 18, 2005.

III. Standard of Review

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

novo.    Pegram v. Honeywell, Inc., 361 F.3d 272, 278 (5th Cir.

2004).    Summary judgment is appropriate if “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

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

56(C); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).    An issue as to a material fact is “genuine” if the

evidence would permit a reasonable jury to return a verdict for

the non-moving party.     Roberson v. Alltel Information Servs., 373


                                   4
F.3d 647, 651 (5th Cir. 2004)(citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)).       The evidence must be construed

in a light most favorable to the non-moving party and doubts

resolved in their favor.    Id.

IV. Discussion

     A. Title VII and § 1981 Discrimination Claims

     We evaluate the discrimination claims together.      Title VII

makes it unlawful for a covered employer to “discriminate against

any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s race.”   42 U.S.C. § 2000e-2(a)(1).2     § 1981 grants

all persons within the jurisdiction of the United States equal

rights to “make and enforce contracts,” including “the making,

performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions of

the contractual relationship.”    42 U.S.C. § 1981(a)-(b).    Because

the same fact pattern underlies both of Roberson’s discrimination

claims, the two are analyzed jointly according to the same

standard of proof.    Roberson, 373 F.3d at 651.

     McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and

its progeny establish a burden-shifting analysis to be applied to




     2
       The parties do not dispute the fact that Game Stop is a
covered employer as defined in § 2000e(b).

                                   5
discrimination claims.3    To make out a prima facie case of

discrimination under Title VII, a plaintiff must establish that

she (1) is a member of a protected class, (2) is qualified for

the position in question, (3) has suffered an adverse employment

action and (4) has been replaced by a person who is not a member

of a protected class.     Pegram, 361 F.3d at 281; see also

McDonnell Douglas, 411 U.S. at 802-03.     These four elements

create a presumption of discrimination, which the defendant may

rebut by presenting a legitimate, nondiscriminatory reason for

its actions.    Shackelford v. Deloitte & Touche, LLP, 190 F.3d

398, 404 (5th Cir. 1999); see also Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248 (1981).     If the defendant

succeeds in rebutting the presumption, the plaintiff must

establish that the defendant’s proffered reason for its action is

pretextual.    Id.

     Roberson’s claim satisfies the first two elements of the

prima facie case.    She is black, and thus a member of a protected

class.    The record also reflects Roberson’s qualification for the

position in question.     Roberson had worked in the RTV department

at Game Stop since August, 1999 and was a Lead since January,

2001.    During this period, she received several raises,

demonstrating some level of confidence on Game Stop’s part in


     3
       A separate framework for “mixed-motive” discrimination
claims was established in Price Waterhouse v. Hopkins, 490 U.S.
228 (1989); Roberson does not raise such a claim.

                                   6
Roberson’s qualification.

       Roberson’s claim falls short with respect to the last two

components of the prima facie claim.    First, she fails to

establish that she suffered any adverse employment action.      “Our

court has a strict interpretation of the adverse employment

element” of the prima facie case for discrimination under Title

VII.    Pegram, 361 F.3d at 282.   An adverse employment action must

be an “ultimate employment decision” such as hiring, firing,

promoting, demoting, compensating and granting leave.     Id.   “An

employment action that ‘does not affect job duties, compensation,

or benefits’ is not an adverse employment action” for purposes of

Title VII.     Id.(quoting Felton v. Polles, 315 F.3d 470, 486 (5th

Cir. 2002)).

       The effect of an action is evaluated according to an

objective standard, and the personal preferences of the employee

for one job over another are not considered.     Id. at 283 (holding

that plaintiff’s transfer to a job “playing a supporting role” to

a prior job is not an adverse employment action); cf. id. at 284

(determining that transfer to job with lower incentive pay may be

an adverse employment action); see also Shackelford, 190 F.3d at

407 (maintaining that denial of computer training to plaintiff

who only performed related duties occasionally is not an adverse

employment action); Mattern v. Eastman Kodak Co., 104 F.3d 702,

708 (5th Cir. 1997)(stating that the alleged submission of unfair


                                   7
and biased employee evaluations is not an adverse employment

action); Dollis v. Rubin, 77 F.3d 777, 779-82 (5th Cir.

1995)(holding that refusal to allow an employee to attend

training sessions did not constitute an adverse employment

action).    In Shackelford, we reiterated our warning in Mattern

not to expand the definition of adverse employment action to

include “events such as disciplinary filings, supervisor’s

reprimands, and even poor performance by the employee –- anything

that might jeopardize employment in the future.”    190 F.3d at

407.

       Roberson claims she was a victim of both a discriminatory

demotion and replacement and a discriminatory failure to train.

The record does not support either allegation sufficiently to

survive summary judgment.    Roberson points to two instances she

identifies as her demotion, the period between December 9 and

December 19, 2002, after she returned from medical leave, and the

elimination of the lead position on January 8, 2003.

       In the December instance, Roberson returned to work from

leave to rumors among co-workers that she had been demoted.

Simmons, director of the Distribution Center, was aware of these

rumors.    On December 13, Roberson met with superiors who

presented her with a memorandum indicating their intention to

eliminate one position of RTV Lead and offering her two other

Lead positions or a clerk position in the RTV department.    From


                                  8
that meeting until December 19, when the plan to eliminate one

RTV Lead position was cancelled and Roberson was offered the

option of remaining in her position, her benefits and

compensation remained constant.    Game Stop’s plans to demote

Roberson never came to fruition.       In Pegram, we held that an

actual transfer to a less prestigious position without any drop

in benefits did not rise to the level of an adverse employment

action.    Pegram, 361 F.3d at 284.     This case is similar; and

Roberson’s potential demotion, which also brought no drop in any

benefits, cannot be considered adverse either.

     In the January instance, the RTV Lead position was

eliminated.    Roberson and McKee, her white colleague, were both

demoted to RTV clerk, with an attendant pay cut.      The pay cut for

each was equivalent.    While this demotion could be construed as

an adverse employment action, it did not involve the replacement

of Roberson with a person who was not a member of a protected

class.    Thus, Roberson does not present a prima facie case of

discrimination with respect to the January instance.

     Game Stop’s alleged denial of WMS computer training to

Roberson also cannot be considered an adverse employment action.

She argues that the failure to train led to her alleged demotion

in December.    This contention lacks merit for two reasons.

First, it conflicts with our established precedent.      In

Shackelford and Dollis, the failure to provide training and the


                                   9
refusal to allow an employee to attend a training conference,

respectively, did not constitute an adverse employment actions.

Roberson alleges that the ad hoc WMS training was more essential

than the computer training in Shackelford.    Even if this were

true, Roberson’s lack of training bore only on her potential

demotion, not the ultimate elimination of the position. In

Shackelford, we rejected plaintiff’s argument that the denial of

training that “tend[ed] to affect” employment status was enough

to constitute an adverse employment action.   190 F.3d at 407.

The connection between the WMS training and the actual adverse

employment action, the January elimination of the RTV Lead

position, is similarly weak in this instance.

     Second, if the alleged potential demotion itself did not

rise to the level of an adverse employment action, a refusal to

provide training that allegedly led to the potential demotion

could not either.    Our precedent is clear that adverse employment

actions are ultimate employment decisions, not the day-to-day

decisions made in the context of the employment relationship.

Roberson does not allege that her employer’s decision not to

provide her with training was a decision about benefits,

compensation or employment.    She merely claims it bore on later

decisions that affected her.   Roberson fails to establish a prima

facie case.

     B. FMLA Claim


                                 10
     Roberson complains that Game Stop failed to restore her to

her position as RTV Lead in violation of the FMLA.   The FMLA

provides that any employee who takes leave under the Act, and

timely returns, must either be restored “to the position of

employment held by the employee when the leave commenced” or “to

an equivalent position with equivalent employment benefits, pay,

and other terms and conditions of employment.”   29 U.S.C. §

2614(a)(1).   An equivalent position is “virtually identical to

the employee’s former position in terms of pay, benefits and

working conditions, including privileges, perquisites and

status.”   29 C.F.R. § 825.215(a)(2001).   See also Hunt v. Rapides

Healthcare System, LLC, 277 F.3d 757, 766 (2001).    The FMLA

establishes two exceptions to the reinstatement right, one of

which is that the employee is not entitled to “any right,

benefit, or position of employment other than any right, benefit

or position to which the employee would have been entitled had

the employee not taken the leave.”   29 U.S.C. § 2614(a)(3).

     Roberson’s failure to reinstate claim has two components.

First, she argues that she was not restored to her position as an

RTV Lead upon her return from leave.   Second, she argues that her

remaining a Lead upon return from leave was conditional on her

receipt of WMS training.   She claims this condition means the

FMLA required Game Stop to provide the training to her.

     Roberson complains that she was not reinstated to her RTV


                                11
Lead position when she returned from leave.    Although it did not

analyze the issue, the district court noted in passing its belief

that an issue of fact existed as to whether Roberson was

restored.4   Roberson characterizes this comment as the district

court’s conclusion.    We disagree both with Roberson’s

characterization of the comment, in reality a remark far short of

a finding, and the substance of the comment itself.    On summary

judgment, we review questions as to whether there exist genuine

issues of material fact de novo, albeit with deference to the

nonmovant.    Jones v. Southern Marine & Aviation Underwriters,

Inc., 888 F.2d 358, 360 (5th Cir. 1989).    The record as is would

not allow a reasonable trier of fact to conclude that Roberson

was not restored to her position, just as it would not allow that

trier to conclude she suffered an adverse employment action.

When Roberson returned to her job from leave, she had the same

pay and the same benefits.    Game Stop informed Roberson of its

intent to eliminate on RTV position, but that plan never came to

fruition.    The December 19 memorandum offered her the option to

remain in her position.    One cannot remain in a position one does

not hold in the first place.    There is no material fact issue as

to whether Roberson returned to a job similar in every tangible


     4
       The only language to this effect is the following
dependent clause: “[a]lthough there exists a fact issue as to
whether Plaintiff was restored to her original position . . . .”
Roberson v. Game Stop, Inc., No. Civ. 3:03-CV-2816-H, 2005 WL
139112, at *4 (N.D. Tex. Jan. 30, 2005)

                                 12
respect to the one she left.    While Roberson was demoted later,

that demotion was part of a general restructuring that eliminated

the position altogether.    To the FMLA’s reinstatement right, “a

necessary exception is provided if the position has been

eliminated.”     Hunt v. Rapides, 277 F.3d 766.   Roberson is not

entitled to keep a job that no longer exists.

     Roberson also argues that Game Stop’s failure to provide her

with training constituted a failure to reinstate under the FMLA.

She contends that her ability to remain a Lead was conditioned on

her receipt of the training.    But the record demonstrates that

Game Stop restored Roberson to her job as RTV Lead and later

eliminated the position altogether.    McKee, who did receive the

training, lost her job as Lead.    There is no indication that any

amount of training would have precluded Game Stop’s decision to

eliminate the position.    Game Stop restored Roberson to the RTV

Lead position, and thus her FMLA claim fails.

V. Conclusion

     For the reasons above, we affirm the judgment of the

district court.

     AFFIRMED.




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