*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this opinion should not be published and is not precedent except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

FILED

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
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. 
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.