               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                       ____________________

                           No. 98-20767
                         Summary Calendar
                       ____________________


     LEO JACKSON,

                                    Plaintiff-Appellant,

     v.

     HOUSTON INDEPENDENT SCHOOL DISTRICT; PAUL PENA, JR,
     Individually and in his Official Capacity as Assistant
     Supervisor of Facilities, Grounds and Support Services,

                                    Defendants-Appellees.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          (H-96-CV-4459)
_________________________________________________________________

                           June 29, 1999

Before KING, Chief Judge, POLITZ and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Plaintiff-appellant Leo Jackson appeals the district court’s

grant of summary judgment in favor of defendants-appellees

Houston Independent School District and Paul Peña, Jr. on his

Title VII and 42 U.S.C. § 1983 claims.     We affirm.

               I. FACTUAL AND PROCEDURAL BACKGROUND



     *
      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this opinion should not be published and is not precedent except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.
       At the time of the events giving rise to this lawsuit,

plaintiff-appellant Leo Jackson, an African-American man, was

employed by defendant-appellee Houston Independent School

District (“HISD” or “the District”) in its Facilities,

Maintenance, and Operations Department (“FMO”), where he worked

as a supervisor of FMO’s small-engine repair shop.    In January

1995, Jackson wanted to apply for the position of Operations

Specialist for Support Services, but, he claims, that position

was “downgraded in classification for racial purposes” and

awarded without application or interview to Raul Cruz, a Hispanic

man.

       Jackson did apply for the position of Operations Manager I,

and he was interviewed by a committee composed of defendant-

appellee Paul Peña, Jr., who was Jackson’s immediate supervisor,

Al Thompson, and Bob Lucas.    Although Peña gave Jackson the

highest rating among all the applicants, Jackson did not receive

a job offer.    Instead, the committee hired José Noriega, a

Hispanic male.    After he learned of the committee’s decision,

Jackson filed an internal grievance contending that race had been

a factor in the committee’s failure to select him for the

position.    Shortly thereafter, in February 1995, Jackson

requested that the Operations Foreman II position that he then

held be reviewed and reclassified.    Peña informed Jackson that

such a review would take place once the District had hired a

consulting company to conduct it.     Soon afterward, the District

engaged the Wyatt Company to carry out a reclassification study


                                  2
of various District positions, and Jackson’s position was

reclassified as a result.

     Jackson filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) contending that he was

denied certain promotions and refused a request for job

reclassification because of his race.   In addition, Jackson

claimed that he suffered retaliation and deprivation of his

constitutional rights to liberty and equal protection.    The EEOC

issued a right to sue notice on September 27, 1996, and on

December 26, 1996, Jackson filed an action in the Southern

District of Texas against the District and Peña (collectively,

“the defendants”) asserting claims for race discrimination and

retaliation under 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”)

and for the deprivation of his rights to liberty and equal

protection under 42 U.S.C. § 1983.   The district court granted

summary judgment for the defendants on all of Jackson’s claims.

Jackson appeals.

                     II. STANDARD OF REVIEW

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

novo, applying the same standards as the district court.     See

United States v. Johnson, 160 F.3d 1061, 1063 (5th Cir. 1998).

After consulting applicable law in order to ascertain the

material factual issues, we consider the evidence bearing on

those issues, viewing the facts and the inferences to be drawn

therefrom in the light most favorable to the non-movant.     See Doe

v. Dallas Indep. Sch. Dist., 153 F.3d 211, 214-15 (5th Cir.1998).


                                3
Summary judgment is properly granted 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).

                         III.    DISCUSSION

     On appeal, Jackson challenges the district court’s grant of

summary judgment on his Title VII and § 1983 claims.   We address

each of his arguments in turn.

A.   Title VII Race Discrimination Claim

     Jackson alleges that the defendants1 discriminated against

him on the basis of his race by awarding the Operations

Specialist for Support Services position to Cruz without an

interview instead of allowing Jackson to apply; refusing to

promote him to Operations Manager I; and failing promptly to

review and reclassify the Operations Foreman II position.    Under

the framework set forth by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), a Title VII plaintiff must

first establish a prima facie case by a preponderance of the

evidence.   See id. at 801-02.   A plaintiff may prove a prima


     1
        The defendants assert that Jackson has not provided any
briefing regarding his Title VII claims against Peña and that he
has therefore waived them. Our reading of Jackson’s brief
reveals, however, that his arguments on his Title VII claims
appear to refer to both the District and Peña, and we will
therefore treat this appeal as challenging the district court’s
grant of summary judgment on Jackson’s Title VII claims against
both defendants.

                                  4
facie case of discrimination by showing (1) that he is a member

of a protected class, (2) that he sought and was qualified for an

available employment position, (3) that he was rejected for that

position, and (4) that the employer continued to seek applicants

with the plaintiff’s qualifications.     See id. at 801.   Once

established, the prima facie case raises an inference of unlawful

discrimination.   See Texas Dep’t of Comm. Affairs v. Burdine, 450

U.S. 248, 254 (1981).   The burden then shifts to the defendant

employer to articulate a legitimate, nondiscriminatory reason for

the challenged employment action.    See McDonnell Douglas, 411

U.S. at 802.   If the defendant comes forward with a reason which,

if believed, would support a finding that the challenged action

was nondiscriminatory, the inference of discrimination raised by

the plaintiff’s prima facie case drops from the case.      See

Burdine, 450 U.S. at 255 n.10.   The focus then shifts to the

ultimate question of whether the defendant intentionally

discriminated against the plaintiff.     See St. Mary’s Honor Ctr.

v. Hicks, 509 U.S. 502, 510-11 (1993).

     We now apply these principles to the case before us.        The

parties appear to agree that Jackson made out a prima facie case

of racial discrimination.   To meet their burden of offering a

legitimate, nondiscriminatory reason for their employment

decisions, the defendants offered the following explanations.

Cruz, they stated, was awarded the Operations Specialist for

Support Services position without an interview because that job

was filled administratively during a department reorganization


                                 5
and reclassification conducted pursuant to official District

procedure.    As for the Operations Manager I position, the

defendants explained that the selection committee collectively

decided that Noriega was the best qualified candidate for the

position.    Finally, with respect to the delay in reviewing

Jackson’s Operations Foreman II position, the defendants averred

that it was necessary to hire a consulting firm before Jackson’s

job could be evaluated.    These explanations, if believed, would

support a finding that the preference for Cruz and Noriega over

Jackson and the defendants’ failure promptly to review Jackson’s

position were legitimate and nondiscriminatory; the defendants

thus have satisfied their burden of production.    The defendants

need not persuade us that they were actually motivated by these

reasons; it is sufficient that they have raised a genuine issue

of fact regarding whether they unlawfully discriminated against

Jackson.    See Williams v. Time Warner Operation, Inc., 98 F.3d

179, 181 (5th Cir. 1996) (citing Burdine, 450 U.S. at 254).

     We now turn to the question of whether the defendants

intentionally discriminated against Jackson on the basis of race.

Jackson may satisfy his summary judgment burden by coming forward

either with direct evidence of discriminatory intent or with

circumstantial evidence that the defendants’ rationale was

pretextual.    See LaPierre v. Benson Nissan, Inc., 86 F.3d 444,

449 (5th Cir. 1996).    We have articulated the test as follows:

     [A] jury issue will be presented and a plaintiff can avoid
     summary judgment . . . if the evidence taken as a whole
     (1) creates a fact issue as to whether each of the
     employer’s stated reasons was what actually motivated the

                                    6
     employer and (2) creates a reasonable inference that [race]
     was a determinative factor in the actions of which plaintiff
     complains. The employer, of course, will be entitled to
     summary judgment if the evidence taken as a whole would not
     allow a jury to infer that the actual reason for the
     discharge was discriminatory.

Williams, 98 F.3d at 181 (first alteration in original) (quoting

Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 995 (5th Cir. 1996)

(en banc), an age discrimination case, and applying Rhodes in the

race discrimination context).

     Jackson points to portions of Peña’s deposition testimony

which he contends constitute either direct evidence of

discriminatory intent or circumstantial evidence that the

defendants’ rationale for denying him the promotion and delaying

him a job review was pretextual.   Specifically, Peña admitted

that he had received orders to “achieve a balance in the

ethnicities”:

     Q. [By Jackson’s counsel] Does your division try to achieve
     a balance in the ethnicities?
     A. That’s been our directive from our superiors.
     Q. Could you repeat that, sir?
     A. That has been a directive from my superiors.
     Q. When was this directive from your superiors?
     A. Through the years.

After Peña explained that Johnnie Tates, his immediate

supervisor, had given an oral “ethnic balancing” directive some

three to seven or eight times, most recently within the last six

months, Jackson’s counsel continued:

     Q. What specifically did Mr. Tates say in this directive?
     A. That we need to work toward balancing our work force
     with ethnicity and gender.
     Q. Did he give any more detail about what he meant by that?
     A. “Look at your makeup.”
     Q. When you say “look at your makeup,” are you referring to
     the ethnic makeup?

                                   7
     A. (Witness nodding head.)
     Q. After you’ve looked at your makeup, what are you
     supposed to do in order to achieve this balance that Mr.
     Tates has demanded?
     A. Nothing, if you don’t have any vacancies.
     Q. And if you do have a vacancy?
     A. You advertise.
     Q. Where do you advertise?
     A. Through HR.
     Q. How does advertising through -- HR, you mean Human
     Resources, correct?
     A. (Witness nodding head.)
     Q. How does advertising help get the balance that your
     supervisors want?
     A. It doesn’t. You look for the best applicant for the
     position.

Later in the deposition, Jackson’s counsel asked whether Tates’s

racial balancing directive was irreconcilable with the statement

on the District’s personnel advertisements that positions were to

be filled without regard to race or national origin.   Peña

responded:

     A. The position should be filled that (indicating); but you
     also need to look at the makeup, as he was telling us. In
     other words, don’t perpetuate it if somebody is already
     there.
     Q. What do you mean by that last comment, sir? I don’t
     understand.
     A. Perpetuate?
     Q. Yes, sir.
     A. If you’re out of balance, don’t keep making it more out
     of balance.
     Q. So that if you have too many African-Americans in a
     particular division or department, you wouldn’t want to put
     another African-American in?
     A. I didn’t say that.
     Q. How is that different from not perpetuating?
     A. I don’t know how to do it. I was never told how to do
     it, so I never practiced it.
     Q. And you never asked how to do it?
     A. No.

In an affidavit signed some two weeks after his deposition, Peña

averred: “Prior to the selection process for the Operations

Manager position in 1995, I was directed by my supervisor, Mr.

                                8
Johnnie Tates, to ensure ethnic balancing in the various

divisions throughout the department.    I interpreted Mr. Tates

[sic] directive as requiring that I ensure that discrimination

was not a part of any employment decision in the department.”

The other two members of the selection committee stated in their

affidavits that they neither received any directive to consider

race or ethnicity nor did so during the application process for

the Operations Manager I position.

     Jackson has failed to raise a fact issue as to whether the

defendants intentionally discriminated against him.    The only

evidence that race was a factor in any of the employment

decisions concerning Jackson was Peña’s testimony that his

supervisor occasionally made somewhat ambiguous comments to the

effect that “we need to work towards balancing our work force

with ethnicity and gender.”   It is far from clear that this

statement was intended or interpreted as an order to

discriminate; indeed, Peña testified that, to the extent that he

understood it at all, he took it to mean that he should not

discriminate in his hiring decisions.    Moreover, there is no

evidence that the defendants discriminated on the basis of race

with respect to any of the incidents of which Jackson complains.

Peña testified, for example, that the District does nothing to

achieve such ethnic balancing if there are no vacancies and that,

if a vacancy arises, it advertises through the human resources

department and offers the position to the best applicant.    The

other members of the Operations Manager I interview committee


                                 9
stated unequivocally that race was not a factor in their

decision.   Jackson has adduced no more than a scintilla of

evidence that the defendants’ employment decisions with respect

to him were racially motivated and, of course, such a mere

scintilla of evidence is insufficient to defeat a motion for

summary judgment.    See Anderson v. Liberty Lobby, 477 U.S. 242,

252 (1986).

B.   Title VII Retaliation Claim

     Jackson also claims that the defendants unlawfully

retaliated against him after he filed an internal grievance with

the District.   Specifically, he alleges that they denied him

promotions and refused his requests that his position be

reclassified, required him to perform an excessive number of

status reports, refused him funds for necessary equipment for his

department, and declined to assign him a new District vehicle to

use in performing his duties.

     Title VII provides in relevant part that “[i]t shall be an

unlawful employment practice for an employer to discriminate

against any of his employees . . . because he has made a

charge . . . under this subchapter.”    42 U.S.C. § 2000e-3(a).   A

retaliation claim has three elements:    (1) the employee engaged

in activity protected by Title VII; (2) the employer took adverse

employment action against the employee; and (3) a causal

connection exists between that protected activity and the adverse

employment action.   See Mattern v. Eastman Kodak Co., 104 F.3d

702, 705 (5th Cir. 1997).


                                   10
       The district court properly granted summary judgment for the

defendants on Jackson’s retaliation claims.       Most of the

retaliation Jackson alleges that he suffered does not rise to the

level of an “adverse employment action.”      Title VII was designed

to address only ultimate employment decisions and not “every

decision made by employers that arguably might have some

tangential effect upon those ultimate decisions.”       Dollis v.

Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995).       “Ultimate employment

decisions” include acts “such as hiring, granting leave,

discharging, promoting, and compensating,” Mattern, 104 F.3d at

707, but not acts that are, at most, “‘tangential’ to future

decisions that might be ultimate employment decisions,” id. at

708.       Such acts as an increased status report requirement and

refusal to provide tools or a new vehicle are not ultimate

employment decisions.       Finally, although the alleged denials of

promotional opportunities and an immediate reclassification are

adverse employment actions, the record fails to show a causal

connection between the filing of his grievance and these actions,

and, in his brief to this court, Jackson ignores this element of

his retaliation claim altogether.

C.   Section 1983 Claim Against the District

       Jackson also claims that the District2 is liable to him

under 42 U.S.C. § 1983 because it deprived him of his rights to

liberty and equal protection by categorizing him based on his

       2
        We will discuss Jackson’s § 1983 claims against the
District and Peña separately because we dispose of them on
different grounds.

                                    11
race.    It is well-settled that a local governmental body such as

the District is liable for damages under § 1983 for

constitutional violations resulting from official policy or

custom.    See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91

(1978).    A local government is responsible under § 1983 “when

execution of [the] government’s policy or custom, whether made by

its lawmakers or by those whose edicts or acts may fairly be said

to represent official policy, inflicts the injury . . . .”       Id.

at 694.    A local government may not, however, be held liable

under § 1983 for the unconstitutional acts of its non-

policymaking employees; municipal liability cannot rest on a

theory of respondeat superior.    See id. at 691.   This circuit has

defined an official policy for whose execution a local government

may be found liable as:

     .      A policy statement, ordinance, regulation, or decision
            that is officially adopted and promulgated by the
            [district] . . . or by an official to whom the
            [district] ha[s] delegated policy-making authority; or

     .      A persistent, widespread practice of [district]
            officials or employees, which, although not authorized
            by officially adopted and promulgated policy, is so
            common and well settled as to constitute a custom that
            fairly represents [district] policy. Actual or
            constructive knowledge of such custom must be
            attributable to the governing body of the municipality
            or to an official to whom that body had delegated
            policy-making authority.

Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1304 (5th Cir.

1995) (alterations in original) (quoting Johnson v. Moore, 958

F.2d 92, 94 (5th Cir. 1992)).    Whether a particular entity has

final policymaking authority is a question of state law, and the

identification of those officials whose decisions represent the

                                 12
official policy of the local governmental unit is a legal

question to be resolved by the trial judge before the case is

submitted to the jury.     See Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701, 737 (1989).

     With these principles in mind, we turn to Jackson’s claims

against the District.    Under Texas law, the board of trustees is

responsible for determining school policy.    See Gonzalez v.

Ysleta Indep. Sch. Dist., 996 F.2d 745, 752 (5th Cir. 1993).

Jackson has adduced no evidence whatsoever that his alleged

injuries stemmed from an official policy promulgated by the board

of trustees or from a persistent, widespread practice of District

officials and employees of which the board had actual or

constructive notice.    Rather, he claims that Dr. Paige, the

District’s superintendent, gave Tates, who in turn passed the

instruction to Peña, a directive regarding ethnic balancing, and

that Paige’s involvement subjects the District to liability.

Jackson has produced no evidence, however, that the District’s

board of trustees delegated final policymaking authority to

Paige.   We therefore conclude that the District cannot be liable

to Jackson under § 1983.

D.   Section 1983 Claim Against Peña

     Finally, Jackson claims that Peña is liable to him under 42

U.S.C. § 1983 because Peña violated his rights to liberty and

equal protection.   Peña contends, however, that he is entitled to

qualified immunity.    Public officials acting within the scope of

their official duties are shielded from civil liability by the


                                  13
doctrine of qualified immunity.    See Eugene, 65 F.3d at 1305

(citing Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982)).

Qualified immunity does not, however, shield a public official

whose conduct violates clearly established constitutional rights,

if a reasonable person would have known that such conduct was

unconstitutional.   See id.   The examination of a claim of

qualified immunity is a two-step inquiry.   First, a court must

determine whether the plaintiff has alleged a violation of a

clearly established right.    See Fontenot v. Cormier, 56 F.3d 669,

673 (5th Cir. 1995).   Second, the court must decide whether the

defendant’s conduct was “objectively reasonable in light of the

legal rules applicable at the time of the alleged violation.”

Id.

      While Jackson has a clearly established right to be free

from racial discrimination in employment, the evidence simply

does not support the conclusion that Peña acted in an objectively

unreasonable manner.   The record does not demonstrate what

connection, if any, Peña had to the decision to award Cruz the

Operations Specialist for Support Services position.   It does

show that Peña rated Jackson highest among the finalists for the

Operations Manager I position, that the interview panel

collectively chose to recommend Noriega, and that Peña did not

immediately review and reclassify Jackson’s position because he

wished to employ a consulting company to review all positions.

As we explained above in Section III.A, Peña’s deposition

testimony--Jackson’s only evidence that race was a factor in any


                                  14
of the employment decisions of which he complains--does not so

much as raise a fact issue as to whether Jackson was

discriminated against on the basis of race.   Thus, Peña

reasonably could have thought his actions to be consistent with

the rights he allegedly violated, and he is therefore entitled to

claim the defense of qualified immunity.

                         IV.   CONCLUSION

     For the foregoing reasons, we AFFIRM the judgment of the

district court.




                                15
