                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                               January 30, 2007
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 06-20509
                           Summary Calendar



LAWRENCE LEE GRICE, JR

                  Plaintiff - Appellant

     v.

FMC TECHNOLOGIES INC, also known as FMC Corporation, also known
as FMC Energy Systems

                  Defendant - Appellee



          Appeal from the United States District Court
           for the Southern District of Texas, Houston
                         No. 4:05-CV-1062


Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Lawrence Lee Grice, Jr. (“Grice”)

appeals the district court’s order granting summary judgment on

his Title VII race discrimination and retaliation claims in favor

of his employer, Defendant-Appellee FMC Technologies Inc.

(“FMCTI”).     For the reasons that follow, we AFFIRM.


     *
        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that this opinion should not be published and is not precedent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-
                 I.   FACTUAL AND PROCEDURAL BACKGROUND

     In March 2001, Grice, an African-American male, began

working temporarily as an Assembly Technician at FMCTI.      On

September 23, 2002, Grice became a regular, full-time employee of

FMCTI as an Assembler I.     As of the date of FMCTI’s brief on

appeal, Grice remained employed with FMCTI.

     The position of Assembler at FMCTI has four distinct

designations ranging from Assembler I to Assembler IV.     The

difference between each designation depends on the employee’s

amount of mechanical experience: an Assembler I generally has six

months, an Assembler II has two to four years, an Assembler III

has at least four years, and an Assembler IV generally has eight

or more years.    An Assembler IV may also serve as a Lead

Assembler, providing supervision for the other Assemblers.

     A move from one Assembler designation to another is

considered job progression at FMCTI.     FMCTI follows a “promote

from within” philosophy in making its hiring decisions.      It posts

all open positions for seven working days on bulletin boards at

each job site and on the company intranet.     An employee does not

need to fill out an application to progress to a higher level of

Assembler.   If a logical successor exists for the posted

position, the posting states “candidate already identified.”

However, even when FMCTI identifies a candidate for a position,

it accepts applications and considers all candidates for the



                                   -2-
posted position.

     On October 6, 2004, Grice filed a charge of discrimination

with the Equal Employment Opportunity Commission (“EEOC”),

alleging failure to promote based on racial discrimination and

retaliation.   Grice’s EEOC charge states that “[he] believe[s]

[he] was discriminated against because of [his] race and . . .

retaliated against.”    Grice’s statement, attached to his EEOC

charge, asserts that “[t]he adverse employment action complained

of includes, without limitation, failure to promote.”    Grice’s

EEOC charge did not indicate the position to which FMCTI

allegedly failed to promote him.

     FMCTI has no record of Grice’s application for a promotion

prior to his filing of the EEOC charge.    FMCTI’s records do

indicate, however, that on October 12, 2004, James Faucett

(“Faucett”), Grice’s supervisor, initiated a job progression for

Grice, moving him from Assembler I to Assembler II, retroactive

to October 1, 2004.    Several days before Faucett initiated the

job progression, the FMCTI Human Resources Department received

notice of Grice’s EEOC charge.    The Human Resources Department

did not notify Faucett that Grice had filed an EEOC charge prior

to Faucett’s decision to promote Grice to Assembler II.

     On November 19, 2004, Grice received a right-to-sue letter

from the EEOC.   In December 2004, Grice filed suit against




                                 -3-
FMCTI,1 asserting claims of race discrimination and retaliation

based on FMCTI’s failure to promote him, in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1),

2000e-3(a) (2000).2    Grice alleges that FMCTI denied him numerous

promotions, although he provides only one example.    Grice claims

that in April 2005, he applied for a Lead Assembler position and

was not promoted.     He contends that during his interview for Lead

Assembler, Richard Meier, a supervisor, asked him if he would be

willing to lie for the company if asked to do so.    According to

Grice, he responded no, and as a result, Faucett asked two other

employees to apply for lead positions.    FMCTI promoted Wilford

Cartha (“Cartha”) and Darren Mayo (“Mayo”), both of whom are

African-American, to Lead Assembler positions.    Cartha had been

an FMCTI employee since October 2001, and Mayo had been an FMCTI

employee since January 1997.

     Grice makes other claims of unfair treatment.    Grice alleges

that in January 2004, Faucett gave Mayo a bad evaluation.    Grice

maintains that Mayo convinced Faucett to allow him to redo his

self-evaluation.    After Mayo allegedly made changes to his self-

evaluation, Grice contends that Faucett gave Mayo a good


     1
        Grice’s suit was initially filed in Texas state court,
but FMCTI timely removed the case pursuant to 28 U.S.C. § 1331.
     2
        Grice also asserted a common law claim for intentional
infliction of emotional distress. The district court granted
summary judgment on this claim, and Grice has not contested this
ruling on appeal.

                                  -4-
evaluation as well as a large pay raise.

     Grice further contends that in June 2004 he submitted a

complaint to the FMCTI Human Resources Department stating that he

was harassed when Faucett accused him of lying on his time sheet

about a training class he attended with other Assemblers.    Two of

the other Assemblers, Roy Bolten, who is Caucasian, and Tellis

Cannon, who is African-American, left the class early and did not

report any time on their time sheets for attending the class.

Eric Smith, one of Grice’s supervisors, questioned Grice and

others about the length of the class and determined that Grice

had recorded the appropriate amount of time on his time sheet.

Grice filed a second complaint to Human Resources about the

incident, alleging that Faucett had discriminated against him

because the Assemblers who left the class early were not

reprimanded over their time sheets.    Human Resources investigated

Grice’s allegations but found no evidence to support Grice’s

claim.

     In addition to his race discrimination claim, Grice contends

that FMCTI retaliated against him.    Grice claims, inter alia,

that Faucett refuses to allow him to act as a step-up lead when a

Lead Assembler is absent, that he is watched more closely than

others, that he was wrongly accused of forging a signature, that

Faucett falsified an incident report to make it look like the

incident was Grice’s fault, that Faucett failed to inform him

that he was working the day shift upon returning from leave, that

                               -5-
Faucett holds safety meetings in the smoking area, that Faucett

called him a “little dog,” and that Faucett used the word

“nigger” in front of other employees, but not in Grice’s

presence.   There is no record evidence that Grice filed another

EEOC charge or amended his October 6, 2004, EEOC charge with any

of these allegations.

     FMCTI filed a motion to strike Grice’s summary judgment

evidence and a motion for summary judgment on all of Grice’s

claims.   On April 6, 2006, the district court granted FMCTI’s

motion to strike Grice’s summary judgment evidence on the grounds

that the evidence contained inadmissable hearsay, factual

assertions lacking foundation, and some tape recordings never

proffered to FMCTI.     See Grice v. FMC Techs., Inc., No. H-05-

1062, slip. op. at 7 (S.D. Tex. May 24, 2006).    Specifically, the

district court struck two unsigned affidavits, Grice’s second

affidavit, portions of Grice’s first affidavit, the signed Lester

Conley affidavit, and the Ira Conley affidavit.     Id.

     On May 24, 2006, the district court granted summary judgment

in favor of FMCTI on all of Grice’s claims.3    Grice timely

appealed the district court’s final judgment, challenging the

court’s grant of summary judgment on his race discrimination and

retaliation claims.   This court has jurisdiction pursuant to 28

     3
        The district court did not rely on any of the stricken
evidence in its order granting FMCTI’s summary judgment motion,
and neither do we since Grice has not challenged the order
striking portions of his summary judgment evidence on appeal.

                                  -6-
U.S.C. § 1291.

                      II.    STANDARD OF REVIEW

     We review a district court’s order granting summary judgment

de novo, applying the same standard as the district court.          See

Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001).

Summary judgment is appropriate only “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).   On a motion for summary judgment, we view all facts in

the light most favorable to the nonmoving party.         See Fierros v.

Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir. 2001).

                            III.   DISCUSSION

A.   Title VII Framework

     The filing of an EEOC charge is a prerequisite to bringing a

Title VII suit in federal court.         Young v. City of Houston, 906

F.2d 177, 179 (5th Cir. 1990).      A Title VII plaintiff must file a

charge of discrimination with the EEOC within 300 days of

learning of the alleged unlawful employment action.         See Huckabay

v. Moore, 142 F.3d 233, 238 (5th Cir. 1998) (explaining that for

states, like Texas, that provide an administrative mechanism to

address complaints of employment discrimination, the statutory

period is 300 days); see also 42 U.S.C. § 2000e-5(e)(1).


                                   -7-
     “Each discrete discriminatory act starts a new clock for

filing charges alleging that act,” with discrete acts including,

inter alia, failure to promote.     Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113, 114 (2002).    An EEOC charge must be

filed within the 300-day time period after the discrete

discriminatory act occurred.   Id. at 113.   However, if the

plaintiff is making a hostile work environment claim, then a

series of separate acts can collectively constitute one unlawful

employment practice and the entire time period of the hostile

environment may be considered by the court for the purposes of

determining liability.   Id. at 116-18.

     Assuming the plaintiff has exhausted his administrative

remedies, then he can prove a claim of intentional discrimination

or retaliation either by direct or circumstantial evidence.    We

analyze cases built upon the latter, like this one, under the

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973).   Under McDonnell Douglas, the plaintiff must

first establish a prima facie case of his claim.    For race

discrimination, this requires the plaintiff to show that: (1) he

is a member of a protected group; (2) he was qualified for the

position at issue; (3) he was discharged or suffered some adverse

employment action by the employer; and (4) he was replaced by

someone outside his protected group or he was treated less

favorably than other similarly situated employees outside the

protected group.   See Wheeler v. BL Dev. Corp., 415 F.3d 399, 405

                                  -8-
(5th Cir. 2005).   For retaliation, the plaintiff must establish

that: (1) he participated in an activity protected by Title VII;

(2) his employer took an adverse employment action against him;

and (3) a causal connection exists between the protected activity

and the adverse employment action.    Banks v. E. Baton Rouge

Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003); Gee v.

Principi, 289 F.3d 342, 345 (5th Cir. 2002).    If the plaintiff

makes a prima facie showing, the burden then shifts to the

employer to articulate a legitimate, nondiscriminatory or

nonretaliatory reason for its employment action.     See Russell v.

McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000)

(discrimination); Gee, 289 F.3d at 345 (retaliation).     The

employer’s burden is only one of production, not persuasion, and

involves no credibility assessment.    Russell, 235 F.3d at 222.

If the employer meets its burden of production, the plaintiff

then bears the ultimate burden of proving that the employer’s

proffered reason is not true but instead is a pretext for the

real discriminatory or retaliatory purpose.    See id.4   To carry

this burden, the plaintiff must rebut each nondiscriminatory or

nonretaliatory reason articulated by the employer.    Laxton v. Gap

Inc., 333 F.3d 572, 578 (5th Cir. 2003).

B.   Application of Title VII Framework to Grice’s Claims


     4
        Grice has not argued a mixed-motive theory under this
court’s decision in Rachid v. Jack in the Box, Inc., 376 F.3d 305
(5th Cir. 2004).

                                -9-
     1.   Race Discrimination Claim

     The district court held that Grice’s race discrimination

claim either had not been administratively exhausted or failed on

the merits.   The district court found that there was no evidence

that Grice applied for a Lead Assembler position between December

11, 2003, and October 6, 2004, the 300-day period prior to

Grice’s October 6, 2004, EEOC charge.   Based on this finding, the

district court concluded that Grice could not make out a prima

facie case of race discrimination on his failure to promote claim

because there was no evidence Grice actually applied for a

position and was not promoted.    Instead, the district court noted

that FMCTI actually progressed Grice from Assembler I to

Assembler II effective October 1, 2004.

     The district court also rejected Grice’s only example of

FMCTI’s allegedly discriminatory failure to promote him, the

April 2005 denial of promotion.    According to the district court,

this employment action constituted a discrete, discriminatory

act, requiring Grice to file a new EEOC charge to cover the act.

Because Grice did not file an EEOC charge on the April 2005

failure to promote claim, the district court held that Grice

failed to exhaust his administrative remedies.   The district

court further concluded that even if Grice had exhausted this

claim, it would fail because Grice could not show that FMCTI

promoted someone outside of his protected class, as FMCTI had

promoted Cartha and Mayo, both of whom are African-American

                                 -10-
employees.

     We agree with the district court.   Grice has failed to

present any evidence that he filed any applications for the Lead

Assembler position (or any other Assembler position) prior to

filing his EEOC charge, nor has he presented any evidence that he

was not promoted during this period.   We also find no record

evidence supporting Grice’s allegations that he was treated less

favorably than other employees.    Even if Grice were able to

establish a prima facie case of race discrimination (which he has

not), he cannot meet his ultimate burden of proving pretext.

See Russell, 235 F.3d at 222; see also Laxton, 333 F.3d at 578.

     To the extent Grice is relying on his April 2005 denial of

promotion for his race discrimination claim, the district court

properly concluded that Grice failed to exhaust his

administrative remedies.   Failure to promote is a discrete

discriminatory act that starts a new clock for filing charges

alleging that act.   See Morgan, 536 U.S. 113-14.   Because Grice

was statutorily required to file this claim within 300 days of

the alleged failure to promote, this claim is now time-barred.

See id.   Accordingly, we affirm the district court’s order

granting summary judgment on Grice’s race discrimination claim.

     2.   Retaliation Claim

     The district court held that Grice had not established a

prima facie case of retaliation.   The district court determined

that Grice’s alleged incidents of retaliation did not constitute

                               -11-
adverse employment actions under Fifth Circuit precedent.       See,

e.g., Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000)

(stating that adverse employment actions include only ultimate

employment decisions, such as hiring, granting leave,

discharging, promoting, or compensating).

     We affirm the district court’s judgment on Grice’s

retaliation claim, but because of an intervening decision by the

Supreme Court, our affirmance is for reasons different than those

articulated by the district court.     Shortly after the district

court issued its decision, the Supreme Court decided Burlington

Northern & Santa Fe Railway Co. v. White, --- U.S. ----, 126 S.

Ct. 2405 (2006), which altered the analysis of retaliation

claims.   In Burlington Northern, 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.    The Court held that “a plaintiff must show that a

reasonable employee would have found the challenged action

materially adverse, ‘which in this context means it well might

have dissuaded a reasonable worker from making or supporting a

charge of discrimination.’” 126 S. Ct. at 2415 (quoting Rochon v.

Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) (internal

quotation marks and citation omitted)).     The Court further

explained that “material adversity” is distinct from “trivial

harms”: “[a]n employee’s decision to report discriminatory

                                -12-
behavior cannot immunize that employee from those petty slights

or minor annoyances that often take place at work and that all

employees experience.”   Id.

     Despite this shift in analysis of retaliation claims, Grice

cannot prevail on his retaliation claim.   The allegedly

retaliatory incidents of which Grice complains are either

unsupported by the record or so “trivial” that they do not appear

to be the sort of actions that would dissuade a reasonable

employee from reporting discrimination.    Cf. id. (noting that

“normally petty slights, minor annoyances, and simple lack of

good manners will not” “deter victims of discrimination from

complaining to the EEOC, the courts, and their employers.”)

(internal quotation marks and citation omitted).   In any event,

even if Grice could meet the Burlington Northern standard, he has

not attempted to establish any causal link between the allegedly

retaliatory actions and his participation in a protected

activity.   His subjective belief that the incidents were

retaliatory, without more, is not sufficient to survive summary

judgment.   See Haley v. Alliance Compressor LLC, 391 F.3d 644,

651 (5th Cir. 2004); Travis v. Bd. of Regents, 122 F.3d 259, 266

(5th Cir. 1997).5


     5
        The district court also held that to the extent Grice was
attempting to base his retaliation claim on an alleged hostile
work environment, his claim was not administratively exhausted
because he did not allege hostile work environment in his EEOC
charge. Because Grice has not contested the district court’s
ruling on this issue, we affirm.
                               -13-
                         IV.   CONCLUSION

     For the foregoing reasons, we AFFIRM the district court’s

judgment in favor of FMCTI.

     AFFIRMED.




                               -14-
