Cardenas-Garcia, et al v. TX Tech University, et a

*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this opinion should not be published and is not precedent except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.
1
United States Court of Appeals
Fifth Circuit
F I L E D
December 14, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
No. 04-10224
JAIME CARDENAS-GARCIA; JAHAN RASTY,
Plaintiffs-Appellants,
VERSUS
TEXAS TECH UNIVERSITY; THOMAS BURTON, individually and in his
official capacity as Chair of the Mechanical Engineering Department
at Texas Tech University; and WILLIAM MARCY, individually and in
his official capacity as Associate Dean and later Dean of the
College of Engineering at Texas Tech University,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
03-CV-029-C
Before REAVLEY, DAVIS, and WIENER, Circuit Judges,
PER CURIAM:*
Appellants Jaime Cardenas-Garcia (Cardenas-Garcia) and Jahan
Rasty (Rasty) sue their former employer, Texas Tech University

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2See Order of the District Court, R. 01643 (laying out the
prima facie case for national origin discrimination/disparate
treatment under Title VII), R. 01645 (detailing the prima facie
case for retaliation under Title VII), and Walker v. Thompson,
214 F.3d 615, 625 (5th Cir. 2000)(Stating that both § 1981 and
Title VII are analyzed under the Title VII evidentiary
framework).
2
(TTU) and their former supervisors, Thomas Burton (Burton) and
William Marcy (Marcy), both in their individual and official
capacities, under Title VII and 42 U.S.C. § § 1981 and 1983 for
employment discrimination based on national origin and retaliation.
The district court dismissed both plaintiffs’s claims against all
defendants. We affirm for the following reasons.
In plaintiffs’ actions against TTU under Title VII and against
Burton and Marcy under § 1981, plaintiffs failed to produce summary
judgment evidence from which a factfinder could infer that either
plaintiff suffered an adverse employment action at the hands of any
defendant. Proof of an adverse employment action is a requisite
element of the plaintiffs’ prima facie cases of discrimination and
retaliation under both Title VII and § 1981.2 Plaintiffs allege that
poor performance reviews and disciplinary investigations constitute
adverse employment actions. Under our jurisprudence, an adverse
employment action means an ultimate employment decision, such as
hiring, granting leave, discharging, promoting and compensating.
See Foley v. University of Houston System, 355 F.3d 333, 340 (5th
Cir. 2003). Performance reviews and investigations, therefore, do
not qualify as ultimate employment actions.

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3
Plaintiffs, do, however, also argue that they both received
proportionately lesser pay increases than did other, Anglo
professors on the faculty. While this court has held that a
complete denial of a pay increase may qualify as an ultimate
employment decision, we have never held that a proportionately
lesser pay increase, where an increase was received every year,
could fulfill the requirement. See Fierros v. Texas Department of
Health, 274 F.3d 187, 193 (5th Cir. 2001).
For the above reasons, we AFFIRM the district court’s grant of
summary judgment in favor of all defendants.

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