                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                     December 23, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-20210
                         Summary Calendar


                             DAVID FOSTER,

                                                 Plaintiff-Appellant,

                                versus

                  SOLVAY PHARMACEUTICALS, INC.,

                                                  Defendant-Appellee.


          Appeal from the United States District Court
               for the Southern District of Texas
                         (4:02-CV-4462)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     In   contesting   the     summary    judgment   awarded     Solvay

Pharmaceuticals, Inc., David Foster claims retaliation in violation

of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e

(2000).

     Solvay hired Foster in 2000.        Foster’s title was Manager,

Managed Care West; he managed regional account executives (RAEs)

and cultivated corporate accounts.       Stanley Ferrell was Manager,




     *
       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this opinion should not be published and is not precedent except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.
Managed Care East, with the same responsibilities as Foster.   They

reported to Jim Herman.

     Foster claims Herman engaged in gender discrimination by

awarding Solvay’s President’s Club Award (the award) to a male, Joe

Law, instead of to Suzanne Berger-Barrali, a female.         Foster

alleges he was retaliated against – demoted and later fired – for

challenging Herman’s such discrimination.

     The highest level of recognition given the company’s sales

force, the award is given to RAEs based on their sales performance;

overall performance reviews are used as tie-breakers.    Foster and

Ferrell were responsible for conducting the performance appraisals

of the RAEs they supervised.   Herman had the ultimate authority to

determine the winner.

     In 2000, Herman’s assistant, Manuela Barolet, was responsible

for tracking and calculating the award standings.     She routinely

sent emails to Foster, Ferrell, Herman, and others, updating them.

Barolet sent one email stating that, with one month left before the

selection for the award, Berger-Barrali was leading; results,

however, were not final and would be announced at the National

Business Meeting in January 2001.    The email reminded that overall

performance rankings would be used as tie-breakers.       As noted,

Herman had final authority to determine the winner.

     Law and Berger-Barrali worked under Ferrell’s supervision; he

was responsible for submitting their evaluations to Herman.    When



                                 2
Herman made the selection, his records indicated Law’s quantitative

reviews were better than Berger-Barrali’s; Herman did not yet have

qualitative reviews for the two.               Herman believed, however, that

Law exhibited better leadership qualities.                Therefore, he selected

Law.

       Berger-Barrali was surprised and upset when she did not win;

she complained to Ferrell and others, including Foster.                           While

still   at    the   January    2001    National      Business     Meeting,      Foster

complained to Herman on Berger-Barrali’s behalf.                      Foster claims

this first complaint charged gender bias.                 As discussed infra, the

record demonstrates, however, that 11 October 2001 was the first

time Foster mentioned such bias, in an email to Solvay’s Human

Resources department.

       That   October,    before      Foster    emailed     the   Human       Resources

department, Herman decided to reorganize Solvay’s sales department,

an event that occurred almost yearly.                Herman hoped it would help

streamline the department and improve internal relations.                         T h e

reorganization      plan,     which   became       effective    in    January    2002,

created a new management position that took the place of both

Managers, Managed Care. Herman did not consider Foster for the new

management     position     because    he    did    not   think      Foster    had   the

requisite qualities and skills.

       Foster was reassigned to a new position, Corporate Account

Executive (CAE). Ron Piela, Foster’s former subordinate, was named


                                         3
Area Manager; in Foster’s new CAE role, he reported to Piela.

Foster asserts Piela’s only prior management experience was working

at Pizza Hut.   Solvay contends it chose Piela because he, unlike

Foster, had the necessary skills.    Foster was offered a different

position, one that raised his salary by $2,800.

     In June 2002, Foster complained to the Equal Employment

Opportunity Commission that he had been retaliated against for

reporting Herman’s discriminatory conduct.      The EEOC found no

evidence of discrimination and issued a right-to-sue letter.

     Foster continued to work for Solvay after filing this action

in late 2002.    Due to changes within Solvay unrelated to this

action, Herman no longer supervised Foster.     Beginning in early

2003, Foster was supervised by Pete Wardlaw; Wade Smith, who

replaced Herman in late 2002, supervised Wardlaw.     Smith placed

Foster on a Performance Improvement Plan (PIP), starting in January

2003.   No evidence suggests Smith was aware of the action at hand

when he implemented the PIP.   Foster failed to meet several of the

PIP’s goals and was fired in May 2003.

     Foster amended his complaint to claim he was terminated in

retaliation for filing the EEOC charge and this action.     Summary

judgment was awarded Solvay in early 2005.

     A summary judgment is reviewed de novo under Rule 56 of the

Federal Rules of Civil Procedure.    E.g., Baton Rouge Oil & Chem.

Workers Union v. ExxonMobil Corp., 289 F.3d 373, 376 (5th Cir.


                                 4
2002).   Such judgment is proper 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 a

judgment as a matter of law".            FED. R. CIV. P. 56(c).    Evidence is

construed in the light most favorable to the non-movant. E.g., Kee

v. City of Rowlett, 247 F.3d 206, 210 (5th Cir.), cert. denied, 534

U.S. 892 (2001).        If a plaintiff fails to prove an essential

element of his claim, summary judgment must be granted.                Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).              A party opposing

summary judgment may not rest on the pleadings, but rather must

provide specific facts showing the existence of a genuine issue for

trial.   E.g., Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455,

458 (5th Cir. 1998).      Foster fails to demonstrate a genuine issue

of material fact.

      For retaliation, the plaintiff must show: (1) he engaged in

protected activity; (2) an adverse employment action occurred; and

(3) the protected activity was linked to the adverse action. E.g.,

Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996).                If the

plaintiff establishes a prima facie case, the burden of production

shifts   to   the    defendant      to   demonstrate    a   legitimate,    non-

retaliatory reason for the adverse employment action.              Id. at 304-

05.   If the defendant produces such evidence, “the focus shifts to

the   ultimate      question   of    whether    the    defendant    unlawfully

                                         5
retaliated against the plaintiff”.               Id. at 305.         The ultimate

determination asks whether filing the protected activity was a but-

for cause of the retaliation. Pineda v. United Parcel Serv., Inc.,

360 F.3d 483, 487 (5th Cir. 2004) (stating that when the defendant

offers   a   nondiscriminatory     reason       for   the    adverse     employment

action, the Fifth Circuit has consistently required the plaintiff

to prove that but for the discriminatory purpose, he would not have

been fired).

     An employee engages in protected activity by (1) opposing an

employment practice made illegal by Title VII, or (2) if he has

“made a charge, testified, assisted, or participated in any manner

in an investigation, proceeding, or hearing" under Title VII. Long,

88 F.3d at 304 (citing 42 U.S.C. § 2000e-3(a)).                     Although the

underlying practice need not be illegal, the employee must at least

reasonably believe it to be so.           Id.

     Foster was at Solvay’s January 2001 National Business Meeting,

where the award was presented, when he first complained about

Berger-Barrali’s not receiving it. Nothing in the record, however,

supports Foster’s contention that he claimed gender discrimination

then.

     As noted, Foster never claimed such bias until his 11 October

2001 email to the Human Resources department.                     That email said

Foster first thought Herman’s choice for the award was based on

personal     bias,   but   that   Foster     changed        his   mind    and   “now


                                      6
[considered] it as an example of gender bias”. Therefore, the

district court correctly held Foster’s January 2001 activity was

not protected under Title VII.

       Foster did, however, engage in protected activity in October

2001 when he claimed gender discrimination through his telephone

call    and   email   to      Solvay’s    Human       Resources    department.        In

addition, before he was fired, Foster engaged in protected activity

by filing a complaint with the EEOC and by filing this action.

       Title VII addresses only ultimate employment actions, such as

“hiring, granting leave, discharging, promoting, and compensating”.

Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995) (internal

citation omitted).            Although Foster was told on 8 October 2001,

prior    to   sending    the     protected      email,     that    he   would   not    be

considered for the new CAE position, he was not reassigned until

January 2002.     Foster was not a manager in this new position.                      The

loss of management responsibilities can arguably be seen as a

demotion or failure to promote, either of which are ultimate

employment actions. See Id. Therefore, as the district court held,

viewing the evidence in the light most favorable to the Foster, he

has    established      the    second    part    of    a   prima   facie   Title      VII

violation.

       For a prima facie case of retaliation, Foster must also

demonstrate any adverse employment actions were based, in part, on

Solvay’s knowing about Foster’s protected activity. Sherrod v. Am.


                                           7
Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998).                   Because

Foster was told before making any gender discrimination claims he

would not be considered for the CAE position, he cannot demonstrate

his reassignment was based, in part, on his protected activity.

Solvay did not have to put on hold Foster’s previously planned job

reassignment simply because he subsequently engaged in protected

activity.     See Clark County Sch. Dist. v. Breeden, 532 U.S. 268,

272 (2001).

     Foster was fired in May 2003, six months after filing this

action and nearly a year after filing his EEOC complaint.              Contrary

to Foster’s contention, this time gap is too great to establish

retaliation based merely on temporal proximity.                Id. at 273-74

(collecting cases) (stating time gap must be very close, and

discussing cases where three and four month gaps have been deemed

too long to establish a causal link).

     Foster   was   fired   because       he   failed   to   fulfill   certain

responsibilities in his PIP.    He was put on this plan on 24 January

2003, the same day Solvay filed its answer to this action.               Foster

states complaints about his performance did not arise until after

he filed his EEOC complaint and this action, and, therefore, that

the PIP and his firing were in retaliation for protected activity.

No evidence suggests, however, that Smith, who instituted the PIP,

knew about the EEOC complaint or this action until February or

March 2003.


                                      8
       The PIP included a written warning that failure to follow the

plan    could   result   in    termination.       Uncontroverted      evidence

demonstrates Foster failed to fulfill his duties under the PIP.              It

was not enacted in retaliation for protected activity; Foster’s

termination for failure to follow the PIP was also not retaliation.

Because   Foster   would      have   been   terminated   regardless    of   his

protected activity, summary judgment was proper.

                                                                        AFFIRM




                                        9
