*Local rule 47.5 provides: “The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession.”

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-50406

Summary Calendar

 

CHRISTOPHER O. WOODRUFF,

Plaintiff - Appellant,

versus

PULTE HOME CORPORATION; PULTE HOME CORPORATION OF TEXAS

Defendants - Appellees.

 

Appeal from the United States District Court

for the Western District of Texas

USDC No. SA-97-CA-086 HG

 

December 7, 1998

Before HIGGINBOTHAM, JONES, AND DENNIS, Circuit Judges.

PER CURIAM:*

Christopher O. Woodruff, a former African-American employee of

Pulte Home Corporation and Pulte Home Corporation of Texas, filed

suit against Pulte alleging that he was illegally discriminated

against because of his race and retaliated against when he sought

to enforce his rights by filing a complaint with the Equal
2

Employment Opportunity Commission. Woodruff asserted claims under

Title VII, 42 U.S.C. § 2000e; 42 U.S.C. § 1981; and the Texas

Commission on Human Rights Act (“TCHRA”), Tex. Lab. Code Ann. §§

21.001-21.035. The district court granted summary judgment for

Pulte on all claims. We affirm.

I

Woodruff was hired as a new home sales representative for the

San Antonio division of Pulte in 1995, and he was the only African

American sales representative in the division over the course of

his employment. All supervising employees were white. Woodruff

had no prior experience selling homes, and was assigned a trainer,

Alex Rickel. Woodruff was required to turn over 20% of his

commissions on his first 10 sales to Rickel even if Rickel was not

directly involved in a particular sale. According to affidavits of

individuals other than Woodruff, this requirement had not been

imposed on other new hires previously, and a similarly

inexperienced new employee hired after Woodruff, Humphrey Hassing,

was not required to share commissions in this way. Another

employee, Karen Hill, was required to split her commissions, but

she was hired after Woodruff had submitted his initial complaint.

Woodruff filed an EEOC charge complaining of the practice, and

one month later, Mike Mandola, the new San Antonio division

president, and Frank Boley, the San Antonio sales manager, met with

Woodruff to discuss his complaint. On behalf of Pulte, they

offered to pay Woodruff fully for the portion of the commission

that he had split with Rickel. They also offered to give Woodruff
3

an additional amount to compensate for a November, 1995, sale in

which both he and Rickel had been involved, and had disagreed as to

how to split the commission. Woodruff declined the offer, however,

indicating that he did not want to condone illegal discriminatory

conduct.

Woodruff alleges that Prude did not like him. Prude, he says,

would discuss issues with other salespersons, but would not meet

with Woodruff for more than a short period before kicking him out

of the office. When Woodruff and Rickel had their commission

dispute, Woodruff alleges that Prude met with Rickel but not with

him. In addition, Woodruff maintains, Prude acted evasively when

Woodruff talked to him, rolling his eyes and turning away from

Woodruff. Further, Woodruff alleges that at a sales meeting,

another salesperson, Jim Kucera, openly said that Woodruff was

Pulte’s “token” black, and Prude responded by smirking and rolling

his eyes.

In July, 1995, Woodruff asked to be transferred to a

potentially more lucrative subdivision, Greenbriar at Finesilver,

but never received an answer, even though other employees who had

requested transfers did receive responses. Continuing at the same

location, Woodruff logged low sales figures initially and was

placed on probation. He improved his sales performance, selling

seven homes from January to April, 1996. This amount, however, was

less than Prude’s goal for Woodruff of selling two homes per month,

which in turn was less than the number of homes that Woodruff had

suggested as a self-imposed goal. 
4

In June, 1996, Woodruff was given a choice of remaining at the

Braun Heights subdivision at which he had been working or

transferring to the Blanco Bluffs subdivision, to which about 13

non-African-American sales representatives were transferred over a

three-year period. He chose to transfer. Woodruff wanted to work

at Blanco Bluffs without a partner sales representative, but for

several intervals totaling about three months, he was assigned a

partner. For two additional brief periods, he was assigned a

“retrainer,” Carlos Fontanez. Woodruff complains that the Blanco

Bluffs subdivision where they worked could support only one

salesperson. From June to October, 1996, Woodruff sold only two

homes, and in September, he was informed that his employment might

be terminated if his sales record did not improve. In October,

1996, Woodruff was told that the Blanco Bluffs subdivision might be

closed down altogether if aggregate sales did not increase.

In April, 1997, Woodruff took a vacation. In accordance with

workplace practice, he secured the services of two “hostesses” to

watch his model home while he was away. Woodruff complains that

the Pulte sales director called one of the hostesses and told her

that if any potential buyer showed interest, she should refer that

buyer to another salesperson in another sales division, Laura

Terranova. The hostess complied with this request.

The Blanco Bluffs subdivision was ultimately closed down and

Woodruff’s position was terminated. Overall, Woodruff filed five

charges of discrimination with the EEOC that are before us here.

In addition to the commission splitting, the failure of a manager
 

1The standard for a retaliation claim under 42 U.S.C. § 2000e3(a) is similar. See, e.g., Ray v. Tandem Computers, Inc., 63 F.3d

429, 435 n.22 (5th Cir. 1995).

5

to respond to a transfer request, and the decisions regarding

subdivision assignments and assignment of partners, Woodruff claims

that he was discriminated against when Pulte earlier placed memos

in his personnel file, and by virtue of Pulte’s performance

monitoring, probation, and evaluation programs.

II

We will consider Woodruff’s allegations of race discrimination

and retaliation in turn. With respect to each allegation, Woodruff

has failed to meet his burden. In some cases, he has failed to

establish a prima facie case of discrimination. See, e.g.,

Waggoner v. City of Garland, 987 F.2d 1160, 1163-64 (5th Cir. 1993)

(reciting the requirements for establishing a prima facie case of

discrimination). In others, confronted with a legitimate, nondiscriminatory reason for each action taken, he has failed to offer

evidence that the reason is a mere pretext. See, e.g., Bodenheimer

v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993).1 Because

there is thus no genuine issue of material fact, summary judgment

was proper. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-48 (1986) (“[T]he mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment.”). Woodruff’s conclusory

allegations that employment actions were racially motivated cannot
 

2We need directly consider only Title VII law. Where a

plaintiff alleges violations of both Title VII and § 1981, the

latter claim is considered separately only if it is brought on

grounds different from those available under Title VII. See

Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1575

(5th Cir. 1989). The Texas Commission on Human Rights Act,

meanwhile, is interpreted in conformance with Title VII. See

Dallas Fire Fighters Ass’n v. City of Dallas, 885 F. Supp. 915, 927

(N.D. Tex. 1995).

6

prevent a summary judgment award. See, e.g., Duffy v. Leading Edge

Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995).2

A.

Woodruff’s strongest claim is that he was discriminated

against when forced to pay 20% of his commission on his first ten

sales. Woodruff has met his prima facie burden, since Hassing was

not expected to split his commissions. Nonetheless, the employer

has offered a legitimate business reason for the decision, that at

the time it appeared to be sound business practice. Cf. EEOC v.

Louisiana Office of Community Servs., 47 F.3d 1438, 1448 (5th Cir.

1995) (noting that Title VII is “not intended to be a vehicle for

judicial second guessing of business decisions, nor . . . to

transform the courts into personnel managers”). Woodruff has not

produced evidence that this reason was pretextual, and Pulte’s

offer to compensate him later provides evidence that it was not.

Because Woodruff is not a federal employee, he did not lose his

Title VII claim on account of his refusal to accept this offer.

Cf. Brown v. General Servs. Admin., 425 U.S. 820, 832-33 (1976)

(establishing a different rule for federal employees based on the

administrative scheme established for resolving complaints of

federal employees). Nonetheless, the offer shows that Pulte
7

officials wished to ensure that Woodruff was being treated equally.

Regardless of whether this wish stemmed from Pulte’s desire to

shield itself from legal liability, Woodruff has produced no

evidence that the original plan was motivated by invidious

discriminatory animus, and his claim thus cannot survive summary

judgment.

Woodruff’s claim that his supervisor’s failure to respond to

his request to transfer to Finesilver constituted discrimination

has no basis in law. Insensitive and rude behavior do not

constitute illegal discrimination, and “cold-shouldering” does not

rise to the level of an actionable offense. See, e.g., McConathy

v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563-64 (5th Cir. 1998).

Pulte’s decision not to transfer Woodruff also was not

discriminatory. Pulte selected Bill Dugger, an experienced sales

representative from outside Pulte, to work in this lucrative and

important position. Dugger was clearly more qualified than

Woodruff for the job, and Woodruff has produced no evidence that

the selection was based on race.

Nor was Woodruff’s placement in Blanco Bluffs discriminatory.

Woodruff himself chose to transfer to Blanco Bluffs, and two other

sales representatives were placed in low performing subdivisions

and had low sales as a result of placement there. Approximately 13

sales representatives were assigned to Blanco Bluffs over three

years. Woodruff has thus failed to establish a prima facie case of

discrimination on this charge. Similarly, there is no evidence

that the assignment of partners to Woodruff was discriminatory. A
 

3Similarly, Woodruff has presented no evidence that

instructions to the hostess that he had selected to watch over his

model home during vacation were discriminatorily motivated. In any

event, this claim may be barred, because he did not mention it in

his EEOC charge and thus has failed to exhaust administrative

remedies. See Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1280 n.9

(5th Cir. 1994) (noting that a civil action may encompass only

claims stated in the EEOC charge, developed during the course of an

investigation of that charge, or included in what the EEOC would

reasonably be expected to investigate on account of the charge).

8

sales representative assigned to Blanco Bluffs prior to Woodruff

had approximately four partners assigned to work with her there,

and during Woodruff’s employment, most of the subdivisions had more

than one sales representative assigned to each subdivision.

Woodruff’s complaints about memos being placed in his file

without his knowledge also cannot survive summary judgment. Other

similarly situated sales representatives also had negative memos

placed in their personnel files without their knowledge. Moreover,

there is no evidence that these memos resulted in adverse action

being taken with regard to his employment, and the memos themselves

do not constitute an employment action.

With respect to performance monitoring, Woodruff has presented

no evidence that he was treated differently from other employees

with low sales.3 And with respect to Woodruff’s ultimate

dismissal, he has presented no evidence that there was any

discriminatory motive in Pulte’s decision to close the Blanco

Bluffs subdivision. “Job elimination or office consolidation is a

sufficient nondiscriminatory reason for discharge.” Armendariz v.

Pinkerton Tobacco Co., 58 F.3d 144, 150 (5th Cir. 1995), cert.

denied., 116 S. Ct. 709 (1996). The supervisors whose actions
9

Woodruff complained about were not the same as those who ultimately

approved the closing of Blanco Bluffs, and Woodruff thus cannot

show that the closing was the result of continuing animus.

B.

Woodruff’s first retaliation claim is that Pulte managers

illegally interrogated him after he filed his EEOC charge. In

Paxton v. Union National Bank, 688 F.2d 552 (8th Cir. 1982), an

employee was called into the personnel director’s office and

questioned intensively about why he made an EEOC filing. The

Eighth Circuit found this to be a violation of § 2000e-3. Assuming

without deciding that we would take the same position as the Eighth

Circuit if presented the facts in Paxton, Woodruff nevertheless has

not produced evidence that he was intensively interrogated. The

Pulte managers asked what they could do to correct any perceived

discrimination, and ultimately offered to reimburse Woodruff his

lost training commissions. This cannot constitute a retaliatory

interrogation, for if it did, employers would be unable to remedy

perceived discriminatory conduct without subjecting themselves to

legal liability.

Woodruff also complains that documentation placed in his

personnel file without his knowledge constitutes retaliation.

Performance evaluations, however, do not constitute adverse

employment actions. See, e.g., Mattern v. Eastman Kodak Co., 104

F.3d 702, 707-08 (5th Cir. 1997) (listing adverse employment

actions as including only “ultimate employment decisions” like

hiring, discharging, promoting, granting leave, and compensating).
10

Woodruff has offered no evidence establishing a causal connection

between documentation in his personnel file and the ultimate

decision to terminate him. Similarly, the retraining Woodruff

received did not constitute an adverse employment action and

ultimately was not causally connected to his termination when the

Blanco Bluffs subdivision closed.

III

For the reasons above, we affirm the district court’s decision

to enter summary judgment.

AFFIRMED.