IN THE UNITED STATES COURT OF APPEALS

          FOR THE FIFTH CIRCUIT
                     _______________

                       m 99-11215
                     Summary Calendar
                     _______________




                JAMES CARL WAKEFIELD,

                                          Plaintiff-Appellant,

                          VERSUS

            STATE FARM INSURANCE, ET AL.,

                                          Defendants,

            TERRY L. VICE, BRUCE SUTTON,
                      AND
 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

                                          Defendants-Appellees.



               _________________________

         Appeal from the United States District Court
             for the Northern District of Texas
                     (3:98-CV-1092-T)
              _________________________
                      August 10, 2000
Before SMITH, BARKSDALE, and                           formance review (“QPR”), in January 1997.
  PARKER, Circuit Judges.                              Supervisors were instructed to rate employees
                                                       on a scale of “1” to “5” (“1” being the worst)
JERRY E. SMITH, Circuit Judge:*                        in several performance categories. Each em-
                                                       ployee’s direct supervisor was to make the rat-
   James Wakefield sued his employer, State            ings in three-month intervals calculated from
Farm Mutual Automobile Insurance Company               his employment anniversary date (which was
(“State Farm”), and individuals employed               late December for Wakefield); each supervisor
thereby, claiming to have been discriminated           was to pro vide his employees with initial rat-
against because of race. The district court            ings, called “benchmark” ratings, to apprize
granted State Farm summary judgment, and               them of their status at the inception of this new
Wakefield appeals with regard to those claims          system. Ord rated Wakefield in late January
that arose, purportedly, under title VII of the        1997 as a “2” in nine of the fifteen per-
Civil Rights Act, 42 U.S.C. § 2000e, et seq.,          formance categories, and as a “3” in the rest,
particularly 42 U.S.C. § 2000e-2(a)(1)-(2).            and testified that Wakefield’s benchmark rat-
Finding no reversible error, we affirm.                ings were the worst of any of the employees he
                                                       supervised.
                     I.
   Wakefield began working for State Farm in               On April 8, 1997, Wakefield filled out an
1991. Terry Vice had always been the man-              electronic form requesting consideration for
ager of his department; for much of that time,         the position of Structural Estimator, which
Bruce Sutton had been his second-line su-              carries an entry-level job class of “SF-6”SSthe
pervisor as one of the assistant managers.             same job class Wakefield then held. Wakefield
Wakefield’s direct supervisor was Bart Ord.            forwarded the form to Ord, who recommend-
                                                       ed him for the position and forwarded the form
    Wakefield rose during 1992 from “job               to Sutton. When Sutton received the form, he
class 1” to “job class 3,” then received the           was struck by the inconsistency of Ord’s rec-
position of Field Maintenance Technician, at           ommending Wakefield for a position such a
“job class 5,” for which his supervisors rec-          short time after Ord had rated him so poorly
ommended him. In December 1994, he was                 on his benchmark QPR. Sutton instructed Ord
promoted yet again, with Terry Vice’s approv-          to advise the Human Resources Department to
al, to “job class 6,” as a Senior Field Main-          put a hold on Wakefield’s request for consid-
tenance Technician, and has since held that job        eration so they could discuss the recom-
class.                                                 mendation.

   State Farm introduced a new method of                   Sutton and Vice tried to convince Ord of
evaluating employees, called a quarterly per-          the impropriety of rating an employee as so
                                                       poor, but then recommending him for a po-
                                                       sition in another department. They also ex-
   *
     Pursuant to 5TH CIR. R. 47.5, the court has       plained that they would not recommend Wake-
determined that this opinion should not be             field for the position because of Ord’s low
published and is not precedent except under the        benchmark ratings of him. Vice and Sutton
limited circumstances set forth in 5TH CIR. R.         then instructed Ord not to recommend Wake-
47.5.4.

                                                   2
field for the position, but to advise him that he       cificity to these facts,
still could submit the request for consideration
anyway.                                                    [a] plaintiff must first establish a prima
                                                           facie case of disparate treatment on the
    Wakefield submitted his application, which             basis of race by demonstrating that:
was forwarded to the hiring department by                  (1) he is a member of a protected class;
Human Resources on April 14, 1997. On Ap-                  (2) he was qualified for the position;
ril 16, Human Resources notified Ord that                  (3) despite his qualification, he suffered
Wakefield would not be interviewed because                 an adverse employment decision made
his supervisors had not recommended him.                   by a defendant; and (4) he was replaced
                                                           by, or received less favorable treatment
    Ord mentioned to Sutton in early April                 than, similarly situated non-African
1997 that he planned to raise four of Wake-                Americans.
field’s performance ratings from his bench-
mark scores of “2” to “3” for the first quarter,        Citing Crawford v. Western Elec. Co., 614
which concluded in late March for Wakefield             F.2d 1300, 1315 (5th Cir. 1980). Once the
(three months after his anniversary date). Sut-         plaintiff has demonstrated his prima facie case,
ton pointed out that less than three months             the employer is obliged to articulate legitimate,
had elapsed since Wakefield had received his            nondiscriminatory reasons for the adverse em-
original benchmark ratings in late January, and         ployment action. McDonnell Douglas Corp.
because they were quarterly ratings, any im-            v. Green, 411 U.S. 792, 802 (1973). If the
provements should be based on at least three            employer can, then the inference of discrim-
months’ performance. For that reason, Sutton            ination created by the prima facie demonstra-
instructed Ord to leave Wakefield’s first-              tion disappears, and the court focuses on the
quarter ratings the same as his benchmark rat-          ultimate question of whether the employer
ings and to reflect any improvement in his job          intentionally discriminated against the plaintiff
performance on the second-quarter ratings, to           employee. St. Mary’s Honor Center v. Hicks,
be issued in July. Ord made the desired chang-          509 U.S. 502, 510-11 (1993). The employee
es in July.                                             demonstrates discrimination by showing either
                                                        direct evidence of discrimination or, circum-
                       II.                              stantially, that the employer’s articulation of
   Wakefield claims that Vice and Sutton dis-           legitimate reasons for adverse treatment was
criminated against him on the basis of race by          pretextual. McDonnell Douglas, 411 U.S. at
instructing Ord not to recommend him for the            804. Wakefield claims that he has stated caus-
Structural Estimator position or to raise his           es of action under § 2000e-2(a)(1) and (2).
QPR ratings until the second quarter of 1997.
The district court found that neither of these                                 A.
actions constituted an adverse employment de-              Section 2000e-2(a)(1) forbids employers to
cision under Fifth Circuit precedent.                   “fail or refuse to hire or to discharge any in-
.                                                       dividual, or otherwise to discriminate against
   The methodology for considering a claim              any individual with respect to his compensa-
under title VII has been well rehearsed. As the         tion, terms, conditions, o r privileges of em-
district court explicated the process with spe-         ployment, because of such individual’s race,


                                                    3
color, religion, sex, or national origin.” Id. As       an ultimate employment decision.” Citing
the district court indicated, we repeatedly have        Dollis, 77 F.3d at 781-82 (emphasis added).
held that this subsection, like the anti-
retaliation provisions of § 2000e-3(a),                    This reading is justified and is sufficient to
proscribes “ultimate employment decisions,              defeat Wakefield’s claim that he suffered an
and not . . . ‘interlocutory or mediate’                adverse employment action under § 2000e-
decision[s] which can lead to an ultimate               2(a)(1).   He, too, was denied full re-
decision.” Mattern v. Eastman Kodak Co.,                viewSSbecause of his supervisors’ failure to
104 F.3d 702, 708 (5th Cir. 1997). See also             recommend him at a specific time, based on
Burger v. Central Apartment Management,                 the fact that his employment review was
Inc., 168 F.3d 875, 878-79 (5th Cir. 1999).             exceedingly poor and that sufficient time had
“Ultimate employment decisions include acts             not elapsed to allow meaningful review and
such as hiring, granting leave, discharging,            reconsideration of that score under company
promoting, and compensating.” Id. at 707                procedure.1
(citation and internal quotation marks
omitted). In the context of § 2000e-2(a)(1), at            Even if we ignore the fact that State Farm
least, “employment actions are not adverse              merely denied Wakefield the opportunity to
where pay, benefits, and level of responsibility        participate in the promotion-selection process,
remain the same.” Watts v. Kroger Co., 170              rather than denying him promotion outright,
F.3d 505, 512 (5th Cir. 1999).                          we are still faced with the fact that, by his own
                                                        admission, Wakefield was not seeking
   Wakefield concedes that he “did not seek a           promotion. Rather, he sought only a “new job
promotion”; rather, he claims to have sought            opportunity.” As we have said, this circuit
“a new job opportunity,” which was not a pro-           does not consider an employment action to be
motion but nevertheless was not a mere
“transfer.” Wakefield was not denied his “new
job opportunity” after he had been fully vetted            1
                                                               Wakefield writes in his brief:
for it. Rather, his request for consideration
was excluded preliminarily because he was not              Interestingly, in Burger[, 168 F.3d] at 878
recommended by his supervisor.                             . . . the [c]ourt stated that “‘[u]ltimate em-
                                                           ployment decisions’ include acts such as hir-
    A similar situation arose in Dollis v. Rubin,          ing, granting leave, discharging, promoting,
77 F.3d 777 (5th Cir. 1995). There, an                     and compensating.’” The [d]istrict [c]ourt
employee complained that, among other                      wrote in its Order for this case that “an op-
things, she had been denied a “desk audit” to              portunity to be reviewed for a promotion
determine whether promotion was in order,                  does not constitute an ultimate employment
                                                           decision” and credited Dollis at 781-82 as
which denial “restricted her promotional
                                                           authority.
opportunities and upward mobility.” Dollis,
id. at 779. We held that “none of Dollis’ . . .         Wakefield implies that the district court
complaints involved adverse personnel                   contradicted itself. If Wakefield so contents, it
actions.” Id. at 781. The district court drew           must be because he failed to distinguish between
from this holding that “an opportunity to be            the act of promoting (final promotion decisions)
reviewed for a promotion does not constitute            and the preliminary opportunity to be reviewed for
                                                        a promotion.

                                                    4
an ultimate employment action, and therefore               different than any he had received.”
to establish a prima facie case under § 2000e-
2(a)(1), if “pay, benefits, and level of                      We do not question that Wakefield’s
responsibility remain the same.” Watts, 170                responsibilities upon transfer would have been
F.3d at 512.                                               different. Difference, however, is not enough.
                                                           Rather, our precedent requires that Wakefield
    Wakefield argues that he developed, in the             make a showing that his level of responsibility
summary judgment record, evidence that                     would have increased. Nothing to which he
“[t]he [job] class for this opening was MA2N               points us suggests this would have occurred.
and included a salary range that was higher                In short, Wakefield fails to make a prima facie
than the highest range available in the class ap-          case under § 2000e-2(a)(1), because he cannot
pellant was in at the time of his request for              show an ultimate employment action.
consideration.” The portion of the record to
which he points us for this proposition,                                        B.
however, establishes no such thing. Rather, it                Wakefield also claims that he properly has
reflects that Wakefield would have received no             stated a claim under § 2000e-2(a)(2), which
raise upon transfer, that a merit review would             forbids an employer to
have been available (even as it would have
been available to him in his current position),               limit, segregate, or classify his
and that State Farm considered the “new job                   employees or applicants for employment
opportunity” a completely lateral move.2                      in any way which would deprive or tend
                                                              to deprive any individual of employment
   Meanwhile, Wakefield makes no pretense,                    opportunities or otherwise adversely af-
beyond bare assertion, that his benefits would                fect his status as an employee, because
have changed upon his transfer to his “new job                of such individual’s race, color, religion,
opportunity.” Finally, he points out that “[t]he              sex, or national origin.
new job opportunity was located in another
town, under different management, and includ-              Id. Wakefield points us to Mattern, wherein
ed entirely different and new job                          we explained in dictum that § 2000e-2(a)(2) is
responsibilities . . . includ[ing] the benefits of         a “more vague proscription” that “reaches
specialized training in claims work that was               much farther than” does § 2000e-2(a)(1).
                                                           Wakefield makes no effort, however, to
                                                           delineate the extended reach of § 2000e-
   2
      Wakefield asserts, without citation to the           2(a)(2) except to assert that the conduct he
record, that “the maximum salary grade for the             describes falls within it.
new position is higher than the maximum salary
grade for the position appellant held at the time he
                                                                Despite Wakefield’s failure to cite it, our
attempted to apply for this job opportunity.” We
see no support in the record for this assertion.
                                                           precedent does explicate the role and scope of
State Farm’s summary judgment evidence,                    § 2000e-2(a)(2). In Carpenter v. Stephen F.
meanwhile, supports the opposite conclusion: that          Austin State Univ., 706 F.2d 608 (5th Cir.
the transfer was, from the standpoint of                   1983), we explained that “[t]he disparate im-
compensation, entirely lateral.        Wakefield’s         pact model of [t]itle VII liability is based on
conclusional assertions do not effectively oppose          . . . § 2000e-2(a)(2).” Id. at 620 n.7 (emphasis
State Farm’s evidence.

                                                       5
added).3                                                   his quarterly review ratings until at least three
                                                           months had passed since his initial review, and
  We have identified the procedures for                    not to allow that supervisor to recommend him
making a valid disparate impact claim.                     for a transfer while his ratings were as low as
                                                           originally determined, with the result that he
   [A] a plaintiff must (1) identify the                   was not interviewed for the transfer position
   challenged employment practices or                      because he had not been recommended by his
   policy, and pinpoint the defendant’s use                superiors. By this recitation of evidence,
   of it; (2) demonstrate a disparate impact               Wakefield has satisfied the first requirement in
   on a group that falls within the                        stating a disparate impact claim.
   protective ambit of [t]itle VII; and (3)
   demonstrate a causal relationship                          Wakefield does not, however, satisfy the
   between the identified practice and the                 second step.      He does not make any
   disparate impact.                                       evidentiary showing that the practices
                                                           complained of had the effect of harming the
Gonzales v. City of New Braunfels, 176 F.3d                interests of black employees at State Farm,
834, 839 n. 26 (5th Cir. 1999).4                           either anecdotally or statistically. Neither does
                                                           he show that he was treated differently as a
   Construing Wakefield’s complaint with                   class of one for race-motivated reasons. See
maximum generosity as a disparate impact                   Vaughn, 918 F.2d at 519-20, 523. In short, be
claim, we find that the two “practices”                    the group many or one, Wakefield has not
complained of are his superiors’ decisions not             demonstrated any impact particular to that
to allow his immediate supervisor to change                group that was different from that on others at
                                                           State Farm. Without such a showing, he can
                                                           hardly demonstrate the third element of a
   3
     See also Vaughn v. Edel, 918 F.2d 517, 519-           prima facie case of disparate-impact
20, 523 (5th Cir. 1990); Sagers v. Yellow Freight          discrimination, because he has not shown any
Sys., Inc., 529 F.2d 721, 725, 729 (5th Cir. 1976).        disparity in impact.

   4
      In Gonzales, we faced a disparate impact                                    C.
claim under the Americans with Disabilities Act               State Farm argues that even had Wakefield
(“ADA”) and explained that “[i]n the ADA                   made out a prima facie case under either of
context, a plaintiff may satisfy the second prong of       the above theories, he could not have
his prima facie case by demonstrating an adverse           prevailed, because he failedSSonce State Farm
impact on himself rather than on an entire group.”         had enunciated a legitimate, non-
Id. That this is true in the title VII context is          discriminatory justification for its actionsSSto
demonstrated by Vaughn, wherein the plaintiff did
                                                           provide any evidence that State Farm’s
not suggest that the challenged employment prac-
ticesSSdenying her timely and constructive review
                                                           justification was pretextual.         Wakefield
because of her raceSSwere carried out against all          demonstrates no such showing of pretext, and
blacks, but instead demonstrated evidence that she         our review of the record discloses none.
alone was subjected to them because she was
black. Vaughn, 918 F.2d at 519-20, 523. Wake-                 Wakefield has not shown that State Farm’s
field, therefore, enjoys the same opportunity; as we       policies were invented ex post to explain its
explain, however, he has failed to make use of it.

                                                       6
behavior; he did not demonstrate that the pol-
icies had been employed in discriminatory
ways; he did not provide evidence, other than
the unsupported and uncorroborated suspicion
of his immediate supervisor, that race actually
motivated his employers. Anecdotal and spec-
ulative evidence that racial considerations
motivated behavior, without more, does not
allow inference of the proposition that race
was in fact a motivating factor.5

   “[W]e may affirm the district court’s
judgment for different reasons than the district
court relied upon.” Burger, 168 F.3d 875,
878 (5th Cir. 1999). Here, we decide, not in-
stead of but in addition to the district court’s
conclusion, that Wakefield failed to articulate
a prima facie case of discrimination under title
VII and that he failed as well to articulate any
competent reasons to suggest that State
Farm’s proffered explanations for its behavior
were pretextual.

   AFFIRMED.




   5
     See, e.g., Swanson v. General Servs. Admin.,
110 F.3d 1180, 1186 (5th Cir. 1997) (holding that
“a broad, generalized statement that black
employees were ‘watched’ more closely than whites
is incompetent to establish a pattern of dis-
crimination”); Odom v. Frank, 3 F.3d 839, 849
(5th Cir. 1993) (rejecting anecdotal and speculative
opinion testimony concerning an "unwritten policy"
discouraging advancement of older employees).

                                                       7
