Summary Calendar TERRY LOUIS STEWART v. Missouri Pacific Railroad Company

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United States Court of Appeals
Fifth Circuit
F I L E D
January 27, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________
No. 04-20365
Summary Calendar
________________
TERRY LOUIS STEWART
Plaintiff - Appellant
v.
MISSOURI PACIFIC RAILROAD COMPANY; MISSOURI PACIFIC RAILROAD
COMPANY, doing business as Union Pacific Railroad; UNION PACIFIC
RAILROAD; UNION PACIFIC RAILROAD COMPANY; UNION PACIFIC RAILROAD
CORPORATION
Defendants - Appellees
_________________________________________________________________
Consolidated with
________________
No. 04-20470
Summary Calendar
________________
CEDRIC EMANUEL
Plaintiff - Appellant
v.
MISSOURI PACIFIC RAILROAD COMPANY; MISSOURI PACIFIC RAILROAD
COMPANY, doing business as Union Pacific Railroad; UNION PACIFIC
RAILROAD; UNION PACIFIC RAILROAD COMPANY; UNION PACIFIC RAILROAD
CORPORATION
Defendants - Appellees
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
Nos. H-02-4854 & H-02-4851
_________________________________________________________________

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* 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that this opinion should not be published and is not precedent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.
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Before KING, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*
Terry Stewart and Cedric Emanuel, Plaintiffs-Appellants,
each brought a Title VII suit against his employer, Defendant-
Appellee Union Pacific Railroad Company, claiming discrimination
and retaliation. In each case, Union Pacific filed a motion for
summary judgment, and the court granted summary judgment in favor
of Union Pacific on all claims. Stewart and Emanuel each
appealed the district court’s judgment, and they have since
consolidated their appeals. We AFFIRM.
I. BACKGROUND
A. Factual Background
Plaintiffs-Appellants Terry Stewart and Cedric Emanuel
(collectively “appellants”), both of whom are African American,
are machinists employed by Defendant-Appellee Union Pacific
Railroad Company (“Union Pacific”). They work at the Settegast
locomotive shop, located in Houston, Texas.
On July 10, 2001, a white Union Pacific employee circulated
an e-mail entitled “New York City – revised high school
proficiency exam.” This e-mail presents a series of math
problems built around situations that reflect demeaning

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stereotypes of African Americans and other minority groups. The
employee responsible for distributing the e-mail was disciplined,
receiving five days of unpaid suspension and two years of
probationary employment.
To counter what they felt was an inadequate response to the
e-mail incident, as well as a generally discriminatory work
environment, on September 27, 2001, the appellants, other Union
Pacific employees, and several community members participated in
a rally to protest what they viewed as the disparate treatment of
white and minority employees at the Settegast facility. The
rally was peaceful and, except for a brief incident, did not take
place on Union Pacific property.
On October 2, 2001, Union Pacific sent a letter to the
employees’ union stating that the rally violated company policy
because it took place on Union Pacific property. The letter went
on to list the employees, including the appellants, who
participated in the rally while on Union Pacific property.
Despite the letter, no disciplinary action was taken against any
of the employees mentioned in the letter.
On October 17, 2001, Stewart, Emanuel, and a third employee,
Leopoldo Ramirez, left the Settegast facility for lunch without
apprising their supervisor. Employees at the Settegast facility
are allowed to leave for lunch, but must first inform their
supervisor. Whether they leave the facility or not, employees
are limited to twenty minute lunch breaks. The three employees

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1 Union Pacific has a formal disciplinary system in which
various violations of company rules correspond to different
discipline levels. Higher discipline levels correspond to more
severe punishment.
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were gone for one hour and twenty minutes. They claimed that car
problems delayed their return and that they unsuccessfully
attempted to telephone their supervisors to inform them of the
delay.
On October 19, 2001, the appellants and Ramirez received
letters informing them that they were being charged with leaving
company property without notifying their supervisors and failing
to correct their time sheets to account for the extra hour lost
on their lunch trip. The letters informed the employees that,
pending an investigation, they faced a Level 5 disciplinary
action, meaning they could be terminated.1 However, if the three
employees waived their rights to an investigation, they would
only face a Level 2 disciplinary action. A Level 2 sanction
amounts to a year of probationary employment. Part of this deal
was that the offer was only good if all three employees and a
fourth employee, who was facing discipline for an unrelated
incident but also participated in the September 27 rally, agreed
to accept the deal. All four employees accepted the deal. As a
result, Stewart received one year of probation. Because Emanuel
was already on a Level 2 sanction for a previous violation of
company policy, he was upgraded to a Level 3 sanction. In
addition to facing a year of probation, he was also suspended

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2 Emanuel filed his claim on January 29, 2002. Stewart
filed his claim on February 5, 2002.
3 Although the appellants brought separate suits that
were heard by different judges, they were represented in district
court by the same attorney who filed substantially similar
pleadings in both cases.
4 In its motions for summary judgment, Union Pacific
addressed a disparate impact claim. However, in looking at the
appellants’ original complaints, the appellants did not propound
this cause of action. Thus, we do not consider it here.
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from work without pay for five days.
B. Procedural Background
In early 2002,2 the appellants filed charges with the United
States Equal Employment Opportunity Commission (“EEOC”), alleging
that they were discriminated against based on their race and that
they were punished in retaliation for their participation in the
rally. Following receipt of their right to sue notices from the
EEOC, on December 19, 2002, the appellants brought separate suits
in the United States District Court for the Southern District of
Texas.3 They asserted claims of unlawful racial discrimination
and retaliation under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e, and the Civil Rights Act of
1866, 42 U.S.C. § 1981.4 They additionally brought state law
claims of negligent supervision, negligent retention, and
intentional infliction of emotional distress.
Following discovery, Union Pacific filed a motion for
summary judgment in each cases. The court granted Union
Pacific’s motion. Stewart and Emanuel each filed a notice of

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appeal, and they later chose to consolidate their appeals. The
appellants appeal only the district court’s judgments as to the
Title VII claims.
II. STANDARD OF REVIEW
A. Summary Judgment Standard of Review
We review a district court’s grant of summary judgment de
novo, applying the same legal standards as the district court.
Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir.
2001). Summary judgment is appropriate if there are no genuine
issues of material fact and the movant is entitled to judgment as
a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); FED.R.CIV.P. 56 (c). The initial burden to demonstrate
the absence of a genuine issue concerning a material fact is on
the movant. Celotex, 477 U.S. at 324. Upon showing that there
is an absence of evidence to support an essential element of the
non-movant’s case, the burden shifts to the non-movant to
establish that there is a genuine issue of material fact. Id.
B. The McDonnell Douglas Framework
The burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), governs the
appellants’ disparate treatment and retaliation claims. See
Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir.
2000) (“As this Court has held, the McDonnell Douglas test
applied to Title VII disparate treatment cases is also applicable

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to Title VII unlawful retaliation cases.”). Under the McDonnell
Douglas approach, the plaintiff has the initial burden of proving
a prima facie case by a preponderance of the evidence. Id. To
establish a prima facie case for discrimination, a plaintiff must
show that: (1) he is a member of a protected class; (2) he was
qualified for the position; (3) he suffered an adverse employment
action; and (4) he was replaced by someone not of the protected
class or others similarly situated were more favorably treated.
See, e.g., Okoye v. Univ. of Tex. Health Sci. Ctr., 245 F.3d 507,
512-13 (5th Cir. 2001). The prima facie case for retaliation
requires the plaintiff to show that: (1) he engaged in a
protected activity; (2) he suffered an adverse employment action;
and (3) there is a causal connection between the protected
activity and the adverse employment action. Long v. Eastfield
College, 88 F.3d 300, 304 (5th Cir. 1996).
The adverse employment action required under both causes of
action must be an ultimate employment decision along the lines of
hiring, granting leave, discharging, promoting, or compensating.
Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995). Phrased
differently, an ultimate decision must be “[a] tangible
employment action constitut[ing] a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

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Once the plaintiff establishes a prima facie case, the
burden of production shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the challenged
employment action. McDonnell Douglas, 411 U.S. at 802. If the
defendant proffers such a legitimate reason, the burden shifts
back to the plaintiff to show that the defendant’s reason was
merely a pretext for discrimination. Rios v. Rossotti, 252 F.3d
375, 378 (5th Cir. 2001) (citing Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 138-42 (2000)). Throughout, the
ultimate burden of persuasion remains with the plaintiff.
Reeves, 530 U.S. at 143.
III. ANALYSIS
The district court found that neither appellant could prove
the prima facie case for either discrimination or retaliation.
Specifically, the court found that a sanction of one year of
probation was not an ultimate employment decision, since neither
employee faced termination, demotion, or a loss of benefits.
With respect to Emanuel’s claim, the court recognized that he
lost five days of pay as a result of his suspension. However, it
noted that the suspension was the result of “stacking the
discipline imposed for violating the lunch policy on top of
Plaintiff’s pre-existing disciplinary level. Even then, the
suspension is not on par with hiring, firing, failing to promote,
or reassignment with significantly different responsibilities.”

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5 In their reply brief, the appellants also argue that,
at least for retaliation actions, the ultimate employment action
requirement in Title VII should be broadened so as to conform
with the requirements for a retaliation cause of action brought
under 42 U.S.C. § 1983. Because this argument was raised for the
first time in the reply brief, we deem it waived. See Teal
Energy USA, Inc. v. GT, Inc., 369 F.3d 873, 879 n.18 (5th Cir.
2004).
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Emanuel v. Mo. Pac. R.R. Co., Civil No. H-02-4851, slip op. at 12
(S.D. Tex. Mar. 22, 2004).
The appellants do not argue that the district court
overlooked evidence raising a genuine issue as to whether
probation was an adverse employment action. Instead, they attack
this court’s prior decisions on the issue of what constitutes an
adverse employment action under Title VII. The court below
relied on Dollis, 77 F.3d at 777, for the proposition that only
ultimate employment decisions constitute adverse actions under
Title VII. In Mattern v. Eastman Kodak Co., 104 F.3d 702, 707
(5th Cir. 1997), this court stated that absent a change in the
law, Dollis is binding precedent on all future Fifth Circuit
panels. The appellants argue that the Supreme Court’s decision
in Ellerth represents such a change in the law.5 In Ellerth, the
Court stated that an adverse employment action must be “a
significant change in employment status.” Ellerth, 524 U.S. at
761. Appellants claim that this court has yet to consider
adequately how this statement should impact our Title VII
jurisprudence.
We find the appellants’ argument unavailing. Even if we

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6 For the reasons stated by the district court, we find
that Emanuel’s loss of five days of pay does not impact our
“adverse employment action” analysis. The discipline solely
attributable to the October 17 lunch incident did not result in
his loss of pay.
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were to accept, arguendo, the argument that our definition of an
adverse employment action is inconsistent with Ellerth, on its
own terms, Ellerth does not broaden the definition far enough to
cover the appellants’ probation. As mentioned above, Ellerth
defines a tangible employment action as “a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Ellerth, 524
U.S. at 761. The appellants’ probation did nothing to alter
their employment status. On probation, they received the same
pay and held the same job responsibilities.6 The only impact the
probation had was that if the appellants violated company
policies during their year of probation, they would face stiffer
discipline for the violation than they would have if they were
not on probation. As long as they both continued to do their
jobs and abide by company policies, the probation would have no
impact on them whatsoever. Thus, Ellerth is of no help to
appellants.
IV. CONCLUSION
For the foregoing reasons, the judgments of the district
court are AFFIRMED.

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