                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          June 21, 2004

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                             No. 03-31106
                           Summary Calendar


     ALVIN L CARTHON, SR

                            Plaintiff - Appellant

     v.

     JOHNSON CONTROLS INC

                            Defendant - Appellee


          Appeal from the United States District Court
              for the Western District of Louisiana
                          No. 02-CV-512


Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Alvin L. Carthon, Sr. appeals from the

district court’s grant of Defendant-Appellee Johnson Controls,

Inc.’s motion for summary judgment with respect to Carthon’s

claims of employment discrimination, retaliation, and intentional

infliction of emotional distress.     For the following reasons, we

AFFIRM.

                            I.   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that this opinion should not be published and is not precedent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.
                           No. 03-31106
                                -2-
     Carthon, an African-American male, was hired by Johnson

Controls as a maintenance mechanic for its Shreveport, Louisiana

plant in 1999.   Since that time, Carthon asserts that he has been

denied promotions to five different positions because of his

race.   First, in 2000, Mark Geer, the plant engineering manager

and Carthon’s supervisor, left the company and his position was

eliminated.   According to Carthon, his supervisors eliminated the

post to prevent him from applying for and receiving a promotion.

Second, Carthon alleges that he was discriminated against when

Michael Griffith, a white female, was selected to fill a newly

created maintenance superintendent position in 2000.   Third,

Carthon asserts that he should have been promoted when Johnson

Controls created a project engineer position designed to absorb

the duties formerly performed by the plant engineering manager.

Instead, Brian Esposito, a white male, was selected.   Fourth,

Carthon complains that Chet Sears, a white male, was promoted to

a manager trainee position instead of Carthon.   Last, Johnson

Controls selected Morgann Davidson, a white female, for a quality

engineer position over Carthon in late 2000.   In general, Carthon

contends that his non-promotions were incidents of racial

discrimination because his “qualifications were equal to, or in

many cases exceeded, those who were awarded the position[s], all

of whom were white.”

     Carthon also alleges that he was subjected to unlawful

retaliation when he was written up for failing “to scan out at

the end of his shift” on September 20, 2000.   According to
                             No. 03-31106
                                  -3-
Carthon, he received this warning, his first disciplinary

sanction at Johnson Controls, on September 26, 2000––one day

after expressing to two supervisors his concern that he was being

denied promotional opportunities at Johnson Controls because of

his race.   Carthon also claims to have suffered mental anguish,

embarrassment, and humiliation as a result of his various non-

promotions and the disciplinary action.

     In March 2002, Carthon brought suit against Johnson Controls

alleging employment discrimination and retaliation, in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e et seq. (2000), and Louisiana law, see LA. REV.

STAT. ANN. §§ 23:301 et. seq. (West 1998), § 51:2256 (West 2003).

In addition, Carthon brought a state law claim for intentional

infliction of emotional distress.    Johnson Controls subsequently

filed a motion for summary judgment on all of Carthon’s claims.

The district court granted this motion and entered a judgment in

favor of Johnson Controls.    Carthon timely appeals.

                          II. DISCUSSION

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

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

v. Chevron Chem. Co., 332 F.3d 874, 877 (5th Cir. 2003).    Summary

judgment is proper when the record, viewed in the light most

favorable to the non-moving party, demonstrates no genuine issue

of material fact and the moving party is entitled to judgment as

a matter of law.   See FED. R. CIV. P. 56(c); see also Blow v. City

of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001).
                               No. 03-31106
                                    -4-
A.     Employment Discrimination

       In the district court, Carthon attempted to prove that

Johnson Controls’s employees intentionally discriminated against

him because of his race by utilizing the familiar burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

05 (1973).1      Under this framework, Carthon was first required to

establish a prima facie case of discrimination by a preponderance

of the evidence on each of his non-promotion claims by showing

that (1) he is within a protected class, (2) he was qualified for

the position, (3) he was not selected, and (4) the position was

filled by a person not in the protected class.       See Blow, 236

F.3d at 296.       The district court assumed, for the purposes of

summary judgment, that Carthon met this initial burden.2

       A plaintiff’s prima facie case “creates a rebuttable

presumption that the employer unlawfully discriminated against”

him.       Johnson, 351 F.3d at 622 (internal quotation marks

omitted).       The burden of production then shifts to the employer

to proffer a legitimate, non-discriminatory reason for not

promoting the plaintiff.       See Blow, 236 F.3d at 296-97.    Here,

Johnson Controls provided evidence that it did not chose Carthon



       1
          The parties do not dispute that Title VII principles
govern Carthon’s state law discrimination claims. See Johnson v.
Louisiana, 351 F.3d 616, 619 n.1 (5th Cir. 2003).
       2
          Because we agree with the district court that this case
can be resolved on other grounds, we need not address Johnson
Controls’s argument that Carthon failed to present a prima facie
case of discrimination. See Perez v. Region 20 Educ. Serv. Ctr.,
307 F.3d 318, 324 (5th Cir. 2002).
                              No. 03-31106
                                   -5-
to fill the positions both because his supervisors had concerns

about his efficiency, initiative, attitude, and communication

skills and because the individuals who were selected had

supervisory experience, leadership abilities, and/or histories of

going “above and beyond” their assigned duties.3    Therefore, to

survive the motion for summary judgment, the district court

required Carthon to provide sufficient evidence to create a

genuine issue of material fact regarding whether these reasons

were merely a pretext for discrimination.     See id. at 297-98.

Ultimately, the district court held that Carthon did not meet

this burden because he offered only conclusory allegations that

he was more qualified than the other applicants.

     On appeal, Carthon claims that the Supreme Court’s decision

in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), signals the

demise of the McDonnell Douglas framework.     In Desert Palace, the

Court held that a plaintiff who presents only circumstantial (and

not direct) evidence of discrimination is nevertheless entitled

to a “mixed motive” jury instruction under 42 U.S.C.

§ 2000e-2(m).   Id. at 101.    Importantly, to succeed on a Title

VII claim under the mixed motive analysis, the “plaintiff need

only present sufficient evidence [to demonstrate that] ‘race,

color, religion, sex, or national origin was a motivating

factor’” behind the adverse employment decision.     Id. (emphasis


     3
          The company also noted that it did not promote Carthon
to the plant engineering manager position because that post was
eliminated as unnecessary based on the size of the Shreveport
plant at the time Greer left the company.
                            No. 03-31106
                                 -6-
added).    According to Carthon, Desert Palace implicitly overrules

the McDonnell Douglas burden-shifting framework, allowing all

Title VII plaintiffs to proceed under a mixed motive theory of

recovery.   We need not reach the question whether Desert Palace

has changed the role of McDonnell Douglas in Title VII cases,

however.    Carthon waived this argument by invoking the McDonnell

Douglas framework below.    See Hillstrom v. Best Western TLC

Hotel, 354 F.3d 27, 30-31 (1st Cir. 2003).   And, even assuming

that the issue was preserved, the outcome of this case would be

unaffected because Carthon “has provided no evidence, direct or

circumstantial, from which a reasonable jury could logically

infer that [race] was a motivating factor” in Johnson Controls’s

promotion decisions.    Allen v. City of Pocahontas, Ark., 340

F.3d 551, 557 n.5 (8th Cir. 2003); see also Love-Lane v. Martin,

355 F.3d 766, 786-87 (4th Cir. 2004); Hillstrom, 354 F.3d at

30-31.

     As the district court correctly noted, Carthon introduced no

evidence tending to show that Johnson Controls’s reasons for not

promoting him were pretextual.   Carthon disagrees, and asserts

that the company’s reliance on largely subjective criteria is

itself evidence of pretext.   But, we have held that “[t]he mere

fact that an employer uses subjective criteria” to make

employment decisions does not demonstrate pretext.    Manning, 332

F.3d at 882.   Carthon also argues that because he testified in

his deposition that he has never been counseled for lack of

efficiency, poor initiative, or ineffective communication skills,
                           No. 03-31106
                                -7-
these reasons for not promoting him are necessarily false.     Yet,

Carthon’s contention is belied by his own admission, in the same

deposition, that he was verbally counseled by a supervisor

regarding the length of time it took him to complete his

assignments and to respond to maintenance calls.   Finally,

Carthon’s assertion that “his education was equivalent . . . and

at times superior to the other candidates selected” is equally

unpersuasive.   Even if Carthon is correct,4 this fact does not

cast doubt on Johnson Controls’s assertion that the selectees

were more qualified to fill each position because of their on-

the-job experience and work performance.   See Price v. Fed.

Express Corp., 283 F.3d 715, 723 (5th Cir. 2002) (holding that a

plaintiff’s “better education, work experience, and longer tenure

with the company do not” create an inference of pretext); Odom v.

Frank, 3 F.3d 839, 847 (5th Cir. 1993) (refusing to infer pretext

unless “[the plaintiff]’s qualifications leap from the record and

cry out to all who would listen that he was vastly––or even

clearly––more qualified for the subject job than” the candidate

selected).

     Because Carthon failed to provide any evidence of pretext,

we affirm the district court’s grant of summary judgment to

Johnson Controls on the non-promotion claims.

B.   Retaliation



     4
          In his deposition, Carthon admitted that he was
unfamiliar with Griffith’s, Davidson’s, and Sears’s experience,
qualifications, and background.
                           No. 03-31106
                                -8-
     Carthon next contends that the district court erred in

concluding, as a matter of law, that Johnson Controls did not

unlawfully retaliate against him by issuing a written

disciplinary warning one day after he complained to his superiors

about racial discrimination in the company.   To establish a prima

facie case of retaliation under Title VII, Carthon must show “(1)

that [he] engaged in activity protected by Title VII, (2) that an

adverse employment action occurred, and (3) that a causal link

existed between the protected activity and the adverse employment

action.”   Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 191 (5th

Cir. 2001) (internal quotation marks omitted).   We agree with the

district court that Carthon failed to satisfy the second prong of

this test.   “This court has determined that only ‘ultimate

employment decisions,’ ‘such as hiring, granting leave,

discharging, promoting, and compensating’ satisfy the ‘adverse

employment action’ element of a prima facie case of retaliation.”

Id. (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir.

1995)); see also Mattern v. Eastman Kodak Co., 104 F.3d 702, 707

(5th Cir. 1997) (“[O]ur court has stated that ‘Title VII was

designed to address ultimate employment decisions, not to address

every decision made by employers that arguably might have some

tangential effect upon those ultimate decisions.’” (quoting

Dollis, 77 F.3d at 781-82)).   Carthon’s receipt of a single

disciplinary warning––without an attendant change in the terms or

conditions of his employment––does not qualify as an ultimate

employment decision.   See Thomas v. Tex. Dep’t of Criminal
                              No. 03-31106
                                   -9-
Justice, 220 F.3d 389, 394 n.2 (5th Cir. 2000) (holding that

“receiving formal discipline” is not an “ultimate employment

decision”).

     On appeal, Carthon suggests that the Supreme Court

implicitly overruled this circuit’s ultimate employment decision

doctrine when it held that the anti-retaliation provision of

Title VII, 42 U.S.C. § 2000e-3(a), protects former as well as

current employees.     See Robinson v. Shell Oil Co., 519 U.S. 337,

346 (1997).    We disagree.   After Robinson, we have continued to

apply the “ultimate employment decision” doctrine.     See, e.g.,

Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 531 (5th

Cir. 2003); Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875,

878 (5th Cir. 1999).    As we explained in Mattern, by limiting

recovery to cases where an employer’s retaliation impacts an

ultimate employment decision, this circuit ensures that an action

that “might jeopardize” employment decisions in the “future,” but

has as yet had no tangible effect, does not give rise to

liability.    104 F.3d at 708.   Robinson, which held that a

plaintiff could bring a claim of retaliation after her former

employer provided a negative job reference in response to her

application for employment at a different company, does not cast

doubt on the viability of this rule.     519 U.S. at 339, 346.

Importantly, the negative reference in Robinson was tied to a

specific “ultimate employment decision” (hiring), albeit not by

the former employer; it was not actionable simply because it

might have affected an employment decision that may or may not
                             No. 03-31106
                                 -10-
have taken place in the future.    Carthon’s receipt of a single

written disciplinary warning, by contrast, does not rise to the

level of actionable retaliation.    We therefore affirm the

district court’s grant of summary judgment to Johnson Controls on

this claim.

C.   Intentional Infliction of Emotional Distress

     Finally, Carthon asserts that the district court erred in

concluding that his claim for intentional infliction of emotional

distress was legally insufficient.    In Louisiana, an employee may

recover against his employer for intentional infliction of

emotional distress if he demonstrates “(1) that the conduct of

the [employer] was extreme and outrageous; (2) that the emotional

distress suffered by the [employee] was severe; and (3) that the

[employer] desired to inflict severe emotional distress or knew

that severe emotional distress would be certain or substantially

certain to result from his conduct.”    White v. Monsanto Co., 585

So. 2d 1205, 1209 (La. 1991).    Viewing the record in the light

most favorable to Carthon, his allegations fail to satisfy the

first prong of this analysis.    Johnson Controls’s non-

discriminatory decisions not to promote Carthon on five

occasions, combined with the issuance of a single disciplinary

warning after Carthon complained about not receiving the

promotions, is not conduct that is “so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious and utterly intolerable

in a civilized community.”    Id.; cf. Nicholas v. Allstate Ins.
                          No. 03-31106
                              -11-
Co., 765 So. 2d 1017, 1025-28 (La. 2000) (reviewing cases).

Thus, we affirm the district court’s grant of summary judgment to

Johnson Controls on this claim.

                        III.   CONCLUSION

     Accordingly, we AFFIRM the judgment of the district court.
