                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
                    UNITED STATES COURT OF APPEALS
                         for the Fifth Circuit                       June 12, 2006

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                              No. 05-20236


                              ERIC HAMIC,

                                                      Plaintiff-Appellant,


                                  VERSUS


                  HARRIS COUNTY W.C. & I.D. NO. 36,

                                                      Defendant-Appellee.




            Appeal from the United States District Court
                 for the Southern District of Texas

                             (4:04-CV-1327)

Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

      Eric Hamic (“Hamic”) appeals two decisions of the district

court: (1) an order granting summary judgment in favor of Appellee

Harris County W.C. & I.D. No. 36 (“District No. 36”) on Hamic’s

claim that District No. 36 breached its employment contract with

him and (2) an order granting summary judgment in favor of District

No.   36   on   Hamic’s   claim   that     District   No.   36    unlawfully

discriminated and retaliated against him in violation of 42 U.S.C.


  *
   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opinion should not be published and is not precedent except under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.
§ 2000e for refusing a direct order that Hamic alleges was unlawful

under that section. We affirm both decisions.

                                    I.

      On March 29, 2000, Hamic and District No. 36 entered into an

employment contract (the “Contract”) under which Hamic was employed

to serve as the General Manager of District No. 36 for a term of

five years. One provision of the Contract states, “Hamic shall have

the full authority of his position and title.” Hamic alleges that

this provision gave him “the full authority to hire and fire, [to]

evaluate   performance     and   award   raises   or   issue   constructive

reviews, and [to] manage the day-to-day operations of the water

district,” authority that was allegedly undermined by the Board of

Directors of District No. 36 (the “Board”), as described below. The

“full authority” provision forms the heart of the contract dispute.

      On December 20, 2000, Geraldo Parra, a member of the Board,

allegedly gave Hamic a direct order to fire a non-Hispanic employee

so that an Hispanic employee could be hired. Hamic refused, and,

according to Hamic, relations between himself and three members of

the   Board    (Geraldo    Parra,   Eladio    Ayala,    and    Mike   Black)

subsequently deteriorated. Hamic makes the following allegations

regarding what occurred after he refused Parra’s order: (1) on

various occasions, members of the Board “attempted to coerce,

order,   and   otherwise   induce   [Hamic]    to   hire   only   Hispanics

and . . . made remarks . . . show[ing] an animus toward[s] ‘white’

or Caucasian persons”; (2) on various occasions, members of the

                                     2
Board “expressly usurped the authority of [Hamic] to hire and fire

Water District employees and hired employees without the consent or

approval of [Hamic]”; (3) on various occasions, members of the

Board    made   false    accusations      to       third   parties    about   Hamic’s

expertise,      managerial   abilities,        and    managerial      decisions      and

falsely attributed various problems to him; (4) members of the

Board removed Hamic’s business telephone; (5) members of the Board

“instructed employees to, and allowed employees to, refuse to

follow [Hamic’s] directions in his capacity as General Manager”;

(6) on various occasions, Mike Black ordered Hamic “to perform

irregular and suspect acts in an attempt to exacerbate the already

hostile working environment and interfere with [Hamic’s] ability to

do his job,” namely, he ordered Hamic “to make a report of every

conversation      that   [Hamic]    had   during       the   day     to   include    any

conversation with his wife” and issued “numerous burdensome ‘to do’

lists that were not approved by a quorum of the Board”; (7) members

of the Board engaged in general daily harassment; and (8) Eladio

Ayala testified that as part of a “‘plan,’” he, Geraldo Parra, and

Mike Black “‘slowly . . . made things more difficult for [Hamic] by

giving him trouble with everything he did, by undermining his

authority with the employees, and taking away his duties such as

hiring    and    firing,     so    that       he    eventually       became   just    a

figurehead.’” Hamic alleges that these conditions created a hostile

work environment and constituted retaliation for his refusal to

comply with Parra’s direct order. These conditions form the basis

                                          3
of Hamic’s employment discrimination charge (as well as the factual

basis for his breach of contract claim).

      Hamic reported the above conditions to the Board and to the

attorney for District No. 36, but, according to Hamic, conditions

did not improve. On    June 26, 2002, Hamic filed a charge of

discrimination with the Texas Commission on Human Rights (“TCHR”)

and the Equal Employment Opportunity Commission (“EEOC”), and on

July 17, 2002, Hamic voluntarily resigned from his position as

general manager, a resignation he characterizes as constructive

discharge.2 The EEOC issued Hamic a Right to Sue Letter on February

19, 2003, and the U.S. Department of Justice issued a Right to Sue

Letter on June 27, 2003.3

      On July 16, 2002, Hamic filed suit in Texas state court,

claiming that District No. 36 had violated its employment contract.

District No. 36 removed the case to federal court, where Hamic

amended his complaint to add an employment discrimination charge

under federal law, specifically, a hostile environment claim under

42 U.S.C. § 2000e-2 and a retaliation claim under § 2000e-3.4



  2
   Hamic’s resignation was not effective until August 17, 2002.
  3
   The TCHR does not appear to have issued a Right to Sue Letter,
but that is irrelevant here where Hamic only appeals his federal
employment discrimination cause of action.
  4
   The case was removed on federal question grounds pursuant to a
§ 1983 claim that Hamic later dropped. Hamic tried to remand the
case after dropping his § 1983 claim, but the court ruled that
remand was not proper because of the federal employment
discrimination charge Hamic brought in his amended complaint.

                                4
District No. 36 moved for summary judgment on both issues, breach

of contract and employment discrimination.                On August 6, 2004, the

district court granted District No. 36’s motion in part, ruling

that Hamic take nothing on his breach of contract claim. Hamic

moved for reconsideration. The district court denied Hamic’s motion

and ordered District No. 36 to file another motion for summary

judgment, which it did. This motion, which addressed Hamic’s

employment discrimination charge and argued that some of the acts

alleged in support thereof were time barred, was denied. However,

the district court later vacated the denial, entered the opposite

ruling, and     ordered   Hamic    to    take    nothing     on    his   employment

discrimination charge after reconsidering the parties’ submissions

and   hearing   arguments   from    both        parties    as     to   whether   the

continuing violations doctrine5 applied in Hamic’s case to save any

time barred acts (the court decided it did not). The court entered

final judgment in favor of District No. 36, and Hamic timely

appealed, arguing that a material question of fact exists regarding

his breach of contract claim that precludes summary judgment and

that the district court erred in refusing to apply the continuing

violations doctrine to his § 2000e-3 retaliation claim.

                                        II.

      This Court reviews a grant of summary judgment de novo,



  5
   See, e.g., Pegram v. Honeywell, Inc., 361 F.3d 272, 279-80 (5th
Cir. 2004) (describing the continuing violations doctrine).

                                         5
applying the same standard as the district court. Wheeler v. BL

Dev. Corp., 415 F.3d 399, 401 (5th Cir. 2005). Summary judgment is

appropriate if no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. FED. R.

CIV. P. 56(C). The Court views the evidence in the light most

favorable to the non-movant. Wheeler, 415 F.3d at 401-02. The non-

movant must go beyond the pleadings and come forward with specific

facts indicating     a   genuine   issue   for   trial   to   avoid   summary

judgment. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986)). A genuine issue of material fact exists when the evidence

is such that a reasonable jury could return a verdict for the non-

movant. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)). Summary judgment is appropriate, however, if the non-

movant “fails   to   make   a   showing    sufficient    to   establish   the

existence of an element essential to that party’s case.” Id.

(quoting Celotex, 477 U.S. at 322-23).

                                    A.

     With respect to Hamic’s breach of contract claim, the district

court held that District No. 36 did not breach its contract to

employ Hamic as general manager with the full authority of that

position and title. It reasoned that because the Board, by law,

delegates authority to the general manager in its discretion and

because the Board’s delegation defines the position, the general




                                     6
manager’s “full authority” is whatever the Board says it is.6

Moreover, the court found that neither the Water Code nor the

Contract describes Hamic’s specific authority; rather, they explain

how Hamic’s authority is to be determined: by the Board. Thus, the

court determined that Hamic’s authority as general manager under

the   Contract   was   not   breached      by    the   Board’s    decision   to

participate in the hiring process because the Board retained the

ultimate   authority   to    manage   the       district;   nor   was   Hamic’s

authority breached by any acts of individual members of the Board

that undermined Hamic’s authority because the acts did not prevent

him from doing his job, they simply made his job more difficult.

Having carefully reviewed the record and the parties’ briefs, we

affirm the district court’s decision ordering Hamic to take nothing

on his breach of contract claim essentially for the reasons stated

by the district court.

                                      B.

      With respect to Hamic’s employment discrimination charge, the

district court held that (1) the charge was not subject to the

continuing violations doctrine; (2) the order to fire an Hispanic

person was outside the limitations period and could not support any

  6
   See TEX. WATER CODE ANN. § 49.056(a) (Vernon 2000) (“The board may
employ or contract with a person to perform such services as
general manager for the district as the board may from time to time
specify. The board may delegate to the general manager full
authority to manage and operate the affairs of the district subject
only to orders of the board.”); see also id. § 49.056(b)
(describing the board’s discretion to delegate personnel decisions
to the general manager).

                                      7
acts that occurred in 2002; and (3) any acts that occurred in 2002

did not otherwise illustrate ethnic retaliation or discrimination.7

Hamic only appeals the district court’s decision to the extent that

it failed to apply the continuing violations doctrine to his

retaliation claim. We affirm the district court’s decision in that

respect.

      A plaintiff, like Hamic, who initially institutes proceedings

with an appropriate state agency must file a Title VII employment

discrimination      charge     with     the   EEOC       within    300    days   of   the

challenged discrimination. See 42 U.S.C. § 2000e-5(e)(1); see also

Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003). The

continuing   violations        doctrine       is    an   equitable       doctrine     that

extends the limitations period on otherwise time barred claims when

the unlawful employment practice in question manifests itself over

time,   rather     than   as   a   series      of    discrete       acts.   Pegram      v.

Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004). Previously, a

plaintiff    was     relieved      of     establishing            that    all    alleged

discriminatory conduct occurred within the actionable period if he


  7
   Unfortunately, the district court did not publish a written
decision, so we have had to piece together its holding from the
transcript of a hearing the judge held on February 15, 2005. We
have previously urged courts to provide findings of fact and
conclusions of law when granting summary judgment, and we do so
again here. See Thomas v. N.A. Chase Manhattan Bank, 994 F.2d 236,
241 n.6 (5th Cir. 1993) (citing Wildbur v. Arco Chem. Co., 974 F.2d
631, 644 (5th Cir. 1992); Williamson v. Tucker, 645 F.2d 404, 411
(5th Cir.), cert. denied, 454 U.S. 897, 102 S. Ct. 396, 70 L. Ed.
2d 212 (1981); Boazman v. Economics Lab., Inc., 537 F.2d 210, 213
n.5 (5th Cir. 1976)).

                                          8
could show a series of related acts, one or more of which fell

within the limitations period. Id. However, the Supreme Court has

clarified that “discrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in timely

filed charges.” Id. (citing Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 113 (2002)). The Fifth Circuit states the rule as

follows: “claims based on discrete acts are timely only where such

acts occurred within the limitations period, and . . . claims based

on hostile environment are only timely where at least one act

occurred during the limitations period.” Id. at 279-80.

       Hamic argues on appeal that the district court should have

applied   the   continuing       violations     doctrine     to   his    §   2000e-3

retaliation claim. He asserts that the actions taken against him

were   not   discrete     acts,    but       rather   an    ongoing     pattern   of

retaliation,    subject     to    the    continuing        violations     doctrine.

However, retaliation is, by definition, a discrete act, not a

pattern of behavior. See Mattern v. Eastman Kodak Co., 104 F.3d

702, 705-07 (5th Cir. 1997). It requires an adverse employment

action, which has been defined in this Circuit as an ultimate

employment decision, such as “‘hiring, granting leave, discharging,

promoting, and compensating.’”           See id. at 707 (quoting Dollis v.

Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)). Accordingly, post-

Morgan, a plaintiff can only recover for retaliation to the extent

that it occurred within the limitations period, that is, the


                                         9
continuing violations doctrine does not apply to retaliation. See

Pegram, 361 F.3d at 279-80. Therefore, Hamic’s argument that the

district   court     should   have   applied   the   continuing   violations

doctrine to his retaliation claim must fail.

      Hamic   does    not     otherwise     appeal   the   district   court’s

decision.8 Accordingly, we affirm the district court’s decision

that Hamic take nothing on his employment discrimination charge.

                                     III.

      For the foregoing reasons, we AFFIRM the decisions of the

district court granting summary judgment in favor of District No.

36.




  8
   Hamic urges in his reply brief that, contrary to the district
court’s decision, he was demoted, he resigned as a result of a
hostile environment, and he was constructively discharged. However,
we do not consider arguments raised for the first time in a reply
brief. Wallace v. County of Comal, 400 F.3d 284, 292 (5th Cir.
2005).

                                      10
