                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 6, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-20362


     TYRONE HAMILTON

                           Plaintiff - Appellant

     v.

     TEXAS DEPARTMENT OF TRANSPORTATION

                           Defendant - Appellee


          Appeals from the United States District Court
                for the Southern District of Texas
                         No. H-01-CV-3884


Before KING, Chief Judge, and JONES and SMITH, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Tyrone Hamilton appeals the magistrate

judge’s grant of summary judgment to Defendant-Appellee Texas

Department of Transportation (“TxDOT”) on his Title VII

retaliation claims.    For the following reasons, we AFFIRM.

I.   BACKGROUND

     In this lawsuit, Hamilton, an African-American man, claims

that he was both demoted and denied a promotion in retaliation

for previously filing a Title VII employment discrimination



     *
          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that this opinion should not be published and is not precedent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.
lawsuit against his employer, TxDOT.     Hamilton alleged race

discrimination in his first complaint against TxDOT, filed with

the Equal Employment Opportunity Commission (EEOC) in January

1998, after TxDOT chose to promote a white employee––rather than

Hamilton––to a supervisory position.    Later, TxDOT removed the

white employee from this position and competitively posted the

job opening.    Hamilton submitted his application but did not

complain when TxDOT chose instead to hire Sergio Rodriguez, a

Hispanic man.    Hamilton did, however, file suit against TxDOT in

June 1999 alleging, inter alia, that TxDOT’s failure to promote

him in January 1998 was based on racial animus.    Ultimately, the

district court granted summary judgment to TxDOT in this first

lawsuit on May 11, 2001.    A panel of this court affirmed the

district court’s judgment in March 2002, agreeing that Hamilton

had failed to demonstrate that he was qualified to receive the

promotion in question.     Hamilton v. Tex. Dep’t of Transp., No.

01-20628 (5th Cir. March 19, 2002).

     Hamilton claims that TxDOT unlawfully retaliated against him

for filing the first Title VII lawsuit by subjecting him to at

least two more adverse employment actions, which form the basis

of second Title VII lawsuit.1    See 42 U.S.C. § 2000e-3(a) (2000).

     1
          Initially, Hamilton alleged eleven incidents of
retaliatory discrimination in the instant lawsuit. On September
3, 2002, however, the magistrate judge recommended granting
summary judgment to TxDOT on most of these claims. Hamilton has
not appealed this order and, as explained in the text, he asserts
only two instances of retaliatory discrimination in the present

                                 -2-
First, Hamilton contends that TxDOT demoted him in September

2001, by changing his job responsibility level from “lead worker”

to “individual worker.”   Second, Hamilton asserts that TxDOT

denied his request for a career-ladder promotion in May 2001

based on his decision to appeal for a new trial in his first

Title VII lawsuit.

     After the parties consented to proceedings before the

magistrate judge and engaged in limited discovery, TxDOT moved

for summary judgment.    On September 3, 2002, the magistrate judge

found that Hamilton had not exhausted his administrative remedies

with regard to the demotion claim and recommended granting

summary judgment to TxDOT.   However, the magistrate judge

recommended denying TxDOT’s motion for summary judgment on the

promotion claim.   The district court adopted the magistrate

judge’s recommendations in full, but granted leave both: (1) for

Hamilton to amend his complaint to plead administrative

exhaustion of the demotion claim and (2) for TxDOT to file a

second motion for summary judgment on both claims.   The parties

then consented to trial by the magistrate judge under 28 U.S.C.

§ 636(c).   On March 19, 2003––after Hamilton amended his

complaint and TxDOT made a second motion for summary judgment–-

the magistrate judge granted TxDot’s motion and entered a final

judgment in its favor.    Hamilton timely appealed the decision to



appeal.

                                 -3-
this court.

II.   STANDARD OF REVIEW

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

novo, applying the same standard as the district court.    Fierros

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

Summary judgment is proper when the entire record, viewed in the

light most favorable to the non-moving party, demonstrates no

genuine issue of material fact and where the moving party is

entitled to judgment as a matter of law.    Blow v. City of San

Antonio, 236 F.3d 293, 296 (5th Cir. 2001); see also FED. R. CIV.

P. 56(c).   Although in our review of the record we must draw all

reasonable inferences in favor of the nonmoving party, Fierros,

274 F.3d at 190, “[t]he moving party is entitled to a judgment as

a matter of law [if] the nonmoving party has failed to make a

sufficient showing on an essential element of her case with

respect to which she has the burden of proof.”    Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks

omitted).   Moreover, we have stated that the nonmoving party does

not demonstrate the existence of a genuine issue of fact (and

does not thereby avoid summary judgment) by asserting “some

metaphysical doubt as to the material facts, by conclusory

allegations, by unsubstantiated assertions, or by only a

scintilla of evidence.”    Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc) (citations and internal



                                 -4-
quotation marks omitted).

III. TITLE VII RETALIATION CLAIMS

     A.   Reclassifying Hamilton from a “lead worker” to an
          “individual worker”

     To state a claim of retaliatory discrimination under 42

U.S.C. § 2000e-3(a), Hamilton must prove that (1) he engaged in a

protected activity, (2) he was subjected to an adverse employment

action, and (3) a causal connection existed between his

participation in the protected activity and the adverse

employment action.   See Fabela v. Socorro Indep. Sch. Dist., 329

F.3d 409, 414 (5th Cir. 2003).   Hamilton’s first claim alleges

that TxDOT retaliated against him for filing the first Title VII

lawsuit by changing his job responsibility level from “lead

worker” to “individual worker” in September 2001.   The first

element of the prima facie case for this claim is satisfied

because, when he filed a lawsuit under Title VII, even an

unsuccessful lawsuit, Hamilton engaged in a “protected activity.”

See 42 U.S.C. § 2000e-3(a) (making it unlawful for an employer to

retaliate against an employee “because he has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing” under Title VII).

     The magistrate judge awarded summary judgment to TxDOT on

this claim, however, after finding TxDOT’s decision to reclassify

Hamilton from a “lead worker” to an “individual worker” does not

qualify as an “adverse employment action.”   We agree.   In Dollis,

                                 -5-
we explained that the retaliation provision of Title VII “was

designed to address ultimate employment decisions,” for example,

“hiring, granting leave, discharging, promoting, and

compensating.” 77 F.3d 777, 781-82 (5th Cir. 1995) (emphasis

added) (citation omitted).   Demotions, to the extent that they

“affect job duties, compensation, or benefits” have also been

considered ultimate employment decisions.   Banks v. E. Baton

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

(internal quotation marks omitted).   However, we have explained

that an employee has not satisfied the second element of his

prima facie case under § 2000e-3(a) if he alleges only that he

suffered a negative employment action “that arguably might have

some tangential effect upon [future] ultimate decisions.”

Dollis, 77 F.3d at 781-82; see also Mattern v. Eastman Kodak Co.,

104 F.3d 702, 708 (5th Cir. 1997) (discussing the genesis of this

rule).   Therefore, we have repeatedly held that an employment

action that limits an employee’s future opportunities for

promotion, but does not itself affect the employee’s job duties,

compensation, or benefits, does not qualify as an adverse

employment action.   Banks, 320 F.3d at 575; accord Walker v.

Thompson, 214 F.3d 615, 629 (5th Cir. 2000) (stating that an

employer’s decision to remove the employee’s major account from

her after she filed a complaint with the EEOC did not qualify as

an adverse employment action, even though the employee’s chances

of advancement were decreased); Dollis, 77 F.3d at 782 (holding

                                -6-
that employer’s refusals either to consider whether the plaintiff

deserved a promotion or to provide the employee with training

opportunities, thereby decreasing future promotion opportunities,

were not ultimate employment decisions).

     Our review of the summary judgment record reveals that

Hamilton’s altered job responsibility level, although possibly

decreasing his likelihood of receiving future job promotions, was

not the result of an adverse employment action.   Neither party

disputes that Hamilton’s duties, benefits, and compensation did

not change in September 2001 when his position was reclassified

as that of an “individual worker.”   Instead, TxDOT’s unchallenged

evidence demonstrates that this action was the last in a series

of statewide job reclassification steps taken by TxDOT.    First,

in July 1998 TxDOT altered the “state titles”2 of many of its

engineering positions in an effort to match more closely the

prevailing market wages for similarly qualified engineers.    As a

result, all TxDOT employees previously classified as “Engineering

Specialist I”–-including Hamilton–-were promoted to the state

title, “Engineering Specialist II,” and received a pay increase.

Then in February 2001, all TxDOT employees in Hamilton’s title,

“Engineering Specialist II” were promoted to state title

“Engineering Specialist IV”--a “lead worker” position--and they

     2
          A TxDOT employee has two job titles: a business or
functional title, which is used to describe the employee’s job
duties and responsibilities, as well as a “state title,” which is
used to determine the employee’s pay rate.

                               -7-
received a second raise in salary.     Moreover Hamilton does not

dispute TxDOT’s evidence that it attempted to readjust its

supervisor-to-subordinate ratios over the following months to

meet state goals.    As part of this review, TxDOT decided that the

duties and responsibilities of the “Engineering Specialist IV”

position were not those of a “lead worker.”     Thus, it was

reclassified as an “individual worker” position in September

2001.3

     Hamilton’s only complaint with this process stems from his

belief that he was actually performing the duties of a supervisor

when TxDOT decided that he should no longer be classified as a

“lead worker.”    Without the official status of “lead worker,”

Hamilton contends, he will no longer be eligible for management

training courses and he will have difficulty receiving future

promotions within TxDOT.    Although we assume that Hamilton’s

concerns are valid at this stage in the proceedings, we

nevertheless conclude that he has not suffered an adverse

employment action.    The alteration from “lead worker” to

“individual worker” did not affect either Hamilton’s pay rate or

his job duties.    Therefore, we recognize the possibility that


     3
          TxDOT’s evidence, which Hamilton does not challenge,
demonstrates that a number of other job titles were reclassified
from lead worker to individual worker during the same time frame.
In addition, TxDOT has provided evidence that the other two
Engineering Specialist IV employees in the same subsection of
TxDOT as Hamilton were also reclassified from “lead workers” to
“individual workers” at this time.

                                 -8-
this reclassification may have a tangential effect on future

ultimate employment decisions, but this tangential effect does

not satisfy the second element of a prima facie case of

retaliation.   For these reasons, we agree with the magistrate

judge’s grant of summary judgment to TxDOT on this claim.

     B.   Denying Hamilton’s request for a career-ladder
          promotion

     In his second claim, Hamilton alleges that he was denied a

career-ladder promotion in retaliation for pursuing his first

Title VII lawsuit.   As we explained above, when he filed and

participated in a Title VII lawsuit against his employer,

Hamilton engaged in an activity protected by § 2000e-3(a).     Thus,

he has satisfied the first element of his prima facie case with

respect to this claim.

     In addition, Hamilton presented evidence that, on May 2,

2001, he attached to his performance evaluation a written request

that he be considered for a career-ladder promotion “to

Engineering Assistant V.”   On June 29, 2001, Stuart Corder, the

District Traffic Engineer in TxDOT’s Houston District, sent

Hamilton a letter denying this request.     Based on this evidence,

the magistrate judge found that Hamilton had satisfied the second

element of his prima facie case: not being granted a promotion is

an adverse employment decision.     See Dollis, 77 F.3d at 781-82.4

     4
          TxDOT disagrees that denying Hamilton’s promotion was
an adverse employment action and asks us to follow Brown v. Coach
Stores, 163 F.3d 706, 710 (2d Cir. 1998), in which the Second

                                  -9-
     We now turn to the third element of Hamilton’s prima facie

case: causation.    A plaintiff may attempt to establish causation

in one of two ways: by circumstantial evidence or by direct

evidence.    On the one hand, “[i]f the plaintiff seeks to

establish causation by circumstantial evidence, the tripartite

burden-shifting framework of McDonnell Douglas applies.”

Fierros, 274 F.3d at 191.    Under this framework, the plaintiff’s

circumstantial prima facie case creates a rebuttable presumption

of retaliation and shifts the burden of production to the

employer, who must provide a legitimate, non-retaliatory reason

for the adverse employment decision.    If the employer presents a

legitimate reason, then the burden of production shifts back to

the plaintiff to demonstrate that the proffered reason is

pretextual.    See Fabela, 329 F.3d at 415 n.6; Fierros, 274 F.3d

at 191-92.    In retaliation cases, we have held that “this final

burden requires the plaintiff to demonstrate that the adverse

employment action would not have occurred ‘but for’ the protected

activity.”    Rios v. Rossotti, 252 F.3d 375, 380 (5th Cir. 2001).

     On the other hand, “in the unusual instance where the



Circuit noted that “generally requesting a promotion in an annual
review” does not create a prima facie case of retaliation. It is
not clear that this rule applies to the instant case, however,
because Hamilton––unlike the plaintiff in Brown––submitted a
written request for a specific promotion during his annual
review. Nevertheless, we do not reach this issue because we
conclude below that Hamilton has failed to meet his burden of
proving that TxDOT’s asserted reasons for denying the promotion
are pretextual.

                                -10-
plaintiff is able to support the elements of her claim with

direct evidence of a retaliatory motive, the McDonnell Douglas

framework does not apply.”   Fabela, 329 F.3d at 415.    Under this,

the “mixed-motive” method, the plaintiff’s production of direct

evidence that “retaliation was among the motives which prompted

the adverse action” shifts the burden of proof to the employer to

establish by a preponderance of the evidence that the same

decision would have been made regardless of the forbidden factor.

Id. at 415.

     Whether Hamilton has provided circumstantial or direct

evidence of causation is a key issue in this case.   In response

to TxDOT’s motion for summary judgment, Hamilton offered the

following evidence of retaliatory motivation:   A few days after

asking for a promotion, Hamilton met with his immediate

supervisor, Rodriguez, to inquire about the status of the

request.   Rodriguez informed Hamilton that he would refer the

matter to the District Traffic Manager, Corder, because he did

not have the authority to make the promotion decision.    During

this meeting, Hamilton claims that Rodriguez stated that

Hamilton’s promotion depended on the outcome of his first Title

VII lawsuit.   At a hearing before the magistrate judge, Hamilton

clarified both the context and the contents of this remark:

     he mentioned . . . this was prior to the 11th, before
     [the first lawsuit] was dismissed–-he said, “Well you
     know, . . . we have to see what the outcome of the
     lawsuit, ‘cause the Court might put you back into my


                               -11-
     original position.”5

Hamilton also contends that he asked Rodriguez about the progress

of his promotion after May 11, and that during this second

meeting Rodriguez warned him not to appeal for a new trial.

Nevertheless, Hamilton chose to file an appeal and later sent an

email to Rodriguez urging that his promotion request not be

denied “on the base [sic] if I appeal for new trial as you had

mention [sic] in part.”     Rodriguez forwarded this message to

Corder, and on June 29, 2001, Corder sent Hamilton a letter

denying the promotion.6

     The magistrate judge did not treat Hamilton’s allegations as

direct evidence of retaliatory motivation, however, because

Hamilton never asserted that Rodriguez was primarily responsible


     5
          In Hamilton’s first Title VII lawsuit, he claimed that
he should have been promoted to the position held by Rodriguez.
Thus, even when viewed in the light most favorable to Hamilton,
we simply do not understand how this statement, standing alone,
demonstrates that retaliation played a role in TxDOT’s eventual
decision not to promote Hamilton.
     6
          In the letter, Corder admitted that he was aware of
Hamilton’s belief that Rodriguez warned him not to appeal the
first Title VII lawsuit. But Corder vehemently denied that the
lawsuit played any role in his decisionmaking process, stating:
     Your lawsuit with the Department, and any of your
     decisions related to that lawsuit, have in no way been a
     part of my consideration of your request for promotion.
     I asked Sergio about this, and he told me he has never
     said this to you in the past. Matters brought in your
     lawsuit occurred prior to the arrival of Mr. Rodriguez
     and I. We have worked very hard to ensure that the daily
     operations of the office remain independent from the
     lawsuit, in an effort to provide a productive work
     environment.

                                 -12-
for the decision to deny his promotion.    We agree with this

analysis because the uncontradicted evidence shows that Corder,

not Rodriguez, made the promotion decision.    Hamilton’s only

proffered link between Rodriguez’s statements and Corder’s

decision, that Rodriguez should have had the authority to grant

the promotion, misses the mark.   Even assuming that Rodriguez

made the statements in question–-as we must–-his statements do

not constitute direct evidence that retaliation was one of the

motivations for Corder’s decision to deny Hamilton’s promotion.7

     We have defined direct evidence strictly as “evidence which,

if believed, proves the fact [of intentional discrimination]

without inference or presumption.”     Brown v. E. Miss. Elec. Power

Ass’n, 989 F.2d 858, 861 (5th Cir. 1993) (emphasis added).      For

example, we have held that a job interviewer’s statement that the

plaintiff’s age caused him concern was not direct evidence of

discrimination in the employer’s decision not to hire the

plaintiff.    Haas v. ADVO Sys., Inc., 168 F.3d 732, 733-34 (5th

Cir. 1999).   Although the interviewer’s remarks were neither

vague nor remote in time--and despite a reasonable inference that

     7
          We might be persuaded to find direct evidence of
causation if Hamilton alleged that Corder acted merely as
Rodriguez’s “cat’s paw”; that is, if Hamilton provided evidence
that Corder essentially rubber-stamped Rodriguez’s decision to
deny the promotion. See, e.g., Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 226-27 (5th Cir. 2000) (discussing this
doctrine). Hamilton, however, ignores this theory: arguing that
Rodriguez should have been able to deny the promotion does not
establish that Rodriguez was primarily responsible for Corder’s
decision.

                                -13-
the interviewer had influenced the employer’s hiring

preferences–-we nevertheless noted that an additional inference

was required before we could conclude that the decisionmaker

himself chose not to hire the plaintiff based on age

discrimination.   Id. at 734; cf. Fierros, 274 F.3d at 195

(holding that a decisionmaker’s own statement--that the plaintiff

would not receive a pay increase because she engaged in protected

activity–-is direct evidence of discrimination).   In the context

of TxDOT’s motion for summary judgment, we must assume that

Rodriguez made the statements alleged by Hamilton.   But these

statements do not prove that retaliation played a part in

Corder’s decision, unless we also presume that Rodriguez had

accurate information at the time he spoke (i.e., that Corder was,

in fact, planning to deny the promotion if Hamilton appealed for

a new trial).   Therefore, we find that Hamilton’s evidence is

circumstantial––not direct––evidence of retaliatory motivation.

     If we view this circumstantial evidence in the light most

favorable to Hamilton, he has satisfied the three prongs of a

prima facie case of retaliation.   Under McDonnell Douglas, we

must next determine whether TxDOT has met its burden of providing

a legitimate, non-retaliatory reason for denying Hamilton’s

promotion.   TxDOT has provided at least three reasons for the

nonpromotion.   First, Corder has stated that Hamilton lacked the

requisite qualifications for the promotion he requested.

Importantly, throughout Corder’s tenure as District Traffic

                               -14-
Manager, only two employees held the title of Engineering

Assistant V; each had more than thirty years of experience, each

was promoted from a supervisory position, each was the head of a

subsection of the department, and each regularly handled complex

work assignments.   Hamilton, however, had less than ten years of

experience at TxDOT and he did not hold a supervisory position.

Second, TxDOT contends that Hamilton did not meet Corder’s

primary criterion for exercising his discretion to grant career-

ladder promotions: achieving the “exceeds standards” rating in an

annual performance evaluation and thereby demonstrating the

capability to undertake more advanced duties.    In both 1999 and

2000, Hamilton earned the “below standards” rating in several job

categories, leading his evaluator to conclude: “employee’s

performance has not been up to par.”    In May 2001, Hamilton

evidenced some improvement, achieving a “meets standards” rating;

nevertheless, under Corder’s criteria, he still did not qualify

for the requested promotion.    Third, according to a TxDOT

administrator, it would have been highly unusual for Corder to

approve Hamilton’s promotion request because it would have placed

Hamilton in a job title and salary rate higher than that of his

direct supervisor, Rodriguez.    Under these circumstances, TxDOT

claims that Corder’s decision would have faced exacting scrutiny

by higher-level officials in the Houston District.

     In light of TxDOT’s legitimate, non-discriminatory rationale

for denying the promotion, the burden of production shifts back

                                -15-
to Hamilton to demonstrate that TxDOT’s proffered reasons are

merely pretextual.    Critically, to survive TxDOT’s motion for

summary judgment, Hamilton’s evidence of pretext must “raise [] a

genuine issue of material fact” regarding the basis of Corder’s

decision to deny his promotion.    Haas, 168 F.3d at 733 (quotation

marks omitted).    We conclude that Hamilton has not met this

burden.   Hamilton has provided no evidence suggesting that

Corder’s given reasons for not granting the promotion were

untruthful. For example, Hamilton has not proffered evidence that

Corder gave career-ladder promotions to other employees with the

“meets standards” rating, nor does he claim that his

qualifications are equivalent to those of the two TxDOT employees

who have held the “Engineering Assistant V” position during

Corder’s tenure.

     Hamilton instead relies on his belief that he deserved a

promotion “because of [his] exceptional skills and acceptance of

increased responsibilities” at TxDOT.    Nonetheless, an employee’s

subjective belief that he deserved a promotion, without more, is

insufficient proof of pretext to raise a genuine issue of fact

regarding an employer’s motivation.     Cf. Portis v. First Nat’l

Bank of New Albany,, 34 F.3d 325, 329 (5th Cir. 1994)

(“‘[G]eneralized testimony by an employee regarding his

subjective belief that his discharge was the result of []

discrimination is insufficient to make an issue for the jury in

the face of proof showing an adequate, nondiscriminatory reason

                                -16-
for his discharge.’” (quoting Elliott v. Group Medical & Surgical

Serv., 714 F.2d 556, 564 (5th Cir.1983) (alteration in

original)).   Accordingly, because Hamilton has not demonstrated

that he would have received the promotion but for his first Title

VII lawsuit, summary judgment for TxDOT was appropriate. Rios,

252 F.3d at 380.

IV.   CONCLUSION

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

judgment.




                               -17-
