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,

(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-

(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

(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.,

, 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,

(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,

. We held that “none of Dollis’ . . . Wakefield implies that the district court complaints involved adverse personnel contradicted itself. If Wakefield so contents, it actions.”

. 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.,

(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,

, 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.,

(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-

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,

. 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,

, 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.,

, 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,

(5th Cir. 1993) (rejecting anecdotal and speculative opinion testimony concerning an "unwritten policy" discouraging advancement of older employees).

7