                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                                                            December 14, 2004
                      for the Fifth Circuit
                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-10224



JAIME CARDENAS-GARCIA; JAHAN RASTY,

                                              Plaintiffs-Appellants,


                              VERSUS


TEXAS TECH UNIVERSITY; THOMAS BURTON, individually and in his
official capacity as Chair of the Mechanical Engineering Department
at Texas Tech University; and WILLIAM MARCY, individually and in
his official capacity as Associate Dean and later Dean of the
College of Engineering at Texas Tech University,


                                              Defendants-Appellees.



          Appeal from the United States District Court
               For the Northern District of Texas
                           03-CV-029-C




Before REAVLEY, DAVIS, and WIENER, Circuit Judges,

PER CURIAM:*

     Appellants Jaime Cardenas-Garcia (Cardenas-Garcia) and Jahan

Rasty (Rasty) sue their former employer, Texas Tech University



     *
     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this opinion should not be published and is not precedent except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
(TTU) and their former supervisors, Thomas Burton (Burton) and

William Marcy (Marcy), both in their individual and official

capacities, under Title VII and 42 U.S.C. § § 1981 and 1983 for

employment discrimination based on national origin and retaliation.

The district court dismissed both plaintiffs’s claims against all

defendants.   We affirm for the following reasons.

     In plaintiffs’ actions against TTU under Title VII and against

Burton and Marcy under § 1981, plaintiffs failed to produce summary

judgment evidence from which a factfinder could infer that either

plaintiff suffered an adverse employment action at the hands of any

defendant. Proof of an adverse employment action is a requisite

element of the plaintiffs’ prima facie cases of discrimination and

retaliation under both Title VII and § 1981.2 Plaintiffs allege that

poor performance reviews and disciplinary investigations constitute

adverse employment actions. Under our jurisprudence, an adverse

employment action means an ultimate employment decision, such as

hiring, granting leave, discharging, promoting and compensating.

See Foley v. University of Houston System, 355 F.3d 333, 340 (5th

Cir. 2003). Performance reviews and investigations, therefore, do

not qualify as ultimate employment actions.

     2
     See Order of the District Court, R. 01643 (laying out the
prima facie case for national origin discrimination/disparate
treatment under Title VII), R. 01645 (detailing the prima facie
case for retaliation under Title VII), and Walker v. Thompson,
214 F.3d 615, 625 (5th Cir. 2000)(Stating that both § 1981 and
Title VII are analyzed under the Title VII evidentiary
framework).
                                 2
     Plaintiffs, do, however, also argue that they both received

proportionately   lesser   pay   increases   than   did   other,   Anglo

professors on the faculty. While this court has held that a

complete denial of a pay increase may qualify as an ultimate

employment decision, we have never held that a proportionately

lesser pay increase, where an increase was received every year,

could fulfill the requirement. See Fierros v. Texas Department of

Health, 274 F.3d 187, 193 (5th Cir. 2001).

     For the above reasons, we AFFIRM the district court’s grant of

summary judgment in favor of all defendants.




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