* District Judge of the Southern District of Texas, sitting by

designation.

** Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 27, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-30140

RONALD EDWARD CARTER,

Plaintiff-Appellant,

versus

PAUL O’NEILL, SECRETARY, DEPARTMENT

OF TREASURY,

Defendant-Appellee.

-------------------- Appeal from the United States District Court

for the Western District of Louisiana

(00-CV-1125)

--------------------

Before JOLLY and WIENER, Circuit Judges, and ROSENTHAL, * District

Judge.

PER CURIAM: **

Plaintiff-Appellant Ronald Carter, a white male GS-12 revenue

agent employed by the Internal Revenue Service (“IRS”), filed the

instant reverse discrimination employment action against DefendantAppellee Paul O’Neill, Secretary, U.S. Department of the Treasury,

asserti ng that he was denied a promotion because of his race and

sex. Carter claims (1) institutional discrimination arising from1 42 U.S.C. § 2000(e), et seq.

2 U.S. Const. amend. V.

3 See Quijano v. United States , 325 F.3d 564, 567 (5th Cir.

2003).

4 See id. ; Price v. Federal Express Corp. , 283 F.3d 715, 719

(5th Cir. 2002)(district court’s grant of summary judgment reviewed

de novo).

2 the IRS’s strategic initiative ERR-16 as systematically

d iscriminating against white males since 1990, in violation of

Title VII of the Civil Rights Act of 1964, 1 and the Fifth Amendment

of the United States Constitution; 2 and (2 ) discrimination in

violation of Title VII for failure to p romote him to fill one of

three vacant GS-13 revenue agent positions in the Coordinated

Examination Program (“CEP”) Group in Jackson, Mississippi. In a

combination of sequential rulings, th e district court eventually

dismissed all of Carter’s claims. We affirm.

I. Analysis

The district court’s bench trial findings of fact are reviewed

for clear error. 3 The court’s legal rulings, including partial

summary judgments that in combination resulted in the dismissal of

Ca rter’s discrimination employment action, are reviewed d e novo

. 4

In conducting our review, we have considered the record on appeal,

the arguments advanced b y counsel in their respective appellate

briefs and in their oral arguments before this panel, and the

applicabl e law as cited by counsel and determined independently.5 See Brown v. General Servs. Admin.

, 425 U.S. 820, 96 S.Ct.

1961, 48 L.Ed.2d 402 (1976)(Title VII provides exclusive remedy for

claims of discrimination in federal employment); Perez v. Federal

Bureau of Investigation , 71 F.3d 513, 515 (5th Cir. 1995).

6 See Whalen v. Rubin

, 91 F.3d 1041, 1045 (7th Cir. 1996)(mere

existence of an affirmative action policy is insufficient to prove

intentional discrimination absent evidence of a l ink between the

IRS’s policies and its actions towards the Title VII plaintiff);

see also Frank, et al. v. Xerox Corp.

, Nos. 02-20416, 02-20516,

2003 WL

_____, at *___ (5th Cir. Sept. 30, 2003)(existence of

affir mative action policy, coupled with evidence that policy was

followed in the adv e rse employment action, constituted direct

evidence of unlawful discrimination)(citing Bass v. Bd. of County

3 As a result, we are in agreement with the disposition of Carter’s

case by the district court.

Carter’s institutional discrimination claim, as stated above,

was predicated upon the alleged violations of his rights under

Title VII and the Fifth Amendment of the United States

Constitution. The court properly dismissed Carter’s Fifth

A mendment claim because Title VII is the exclusive vehicl e

available to federal employees claiming employment discrimination. 5

As for Carter’s Title VII claim that systematic reverse

discrimination ove r many years prevented him from acquiring the

experience and performance evaluati ons necessary to compete with

racially and sexually favored revenue agents and resulted in his

failure to obtain promotion, the district court correctly concluded

that Carter’s claim cannot stand alone as a separate cause of

action absent a causal nexus between the alleged historic or

current favoring of females and minorities and Carter’s failure to

obtain promotion. 6 The court also correctly concluded thatComm’rs

, O range County, Fla. , 256 F.3d 1095, 1111 (11th Cir.

2001)).

4 Carter’s inability to show such a causal nexus proves fatal to his

claim.

Assuming, without granting, that Carter has demonstrated both

the existence of an institutionalized system of affirmative action

and its negative cumulative effect on white male revenue agents by

placing beyond their reach the necessary work experience, awards,

and relative fitness ratings, Carter has not causally connected his

own individual work experiences with his failure to obtain the

parti cular promotion here at issue. This is perhaps best

illustr a ted by Carter’s insistence that the selection panel’s

reliance on prior CEP experience in ranking the twelve applicants

for the three positions, in combina tion with the systematic

prevention of white male agents’ obtaining such experience in

recent years, constituted a discriminatory practice in the

selection p rocess (Carter advances a similar claim in connection

with service awards and fitness ratings). Despite this insistence,

though, Carter has not shown the specific nexus between the absence

of CEP experience in his résumé and the denial of this particular

promotion.

Further, during all times pertinent to this inquiry, Carter

worked out of the Monroe, Louisiana office of the IRS; and during

that time, only one CEP case arose in the area served by that

office. The record is uncontradicted that Carter neither7 See Frank

, 2003 WL

_____, at *___ (citing Celestine v.

Petroleos de Vene zuela, S.A. , 266 F.3d 343, 355-56 (5th Cir.

2001)(rejecting pattern-or-practice method of proof in private,

non-class action lawsuits)).

5 specifically requested to participate in that CEP matter nor let it

be known generally that he had an interest in such assignments.

Ev en though systematic exclusion of white males from

acquiring such experience as a side effect of favoring females and

minorities in past assignments might support some other,

differently situated white male GS-12 revenue agent’s claim of

discrimination in the promotion process, for the reasons above, it

does not support Carter’s own claim here. As he has failed to

demonstrate specific adverse consequences to him in this particular

promotion-seeking effort, his claim cannot stand. Merely

establishing the existence of a general pattern or practice of

discrimination such as that shown to have existed in the IRS under

strategic initiative ERR-16 and other programs to attain work force

diversity in high-level technical and management positions within

the IRS is no substitute for Carter’s satisfying the burden in this

private, non-class action lawsuit. 7

In addition, Carter has failed to show pretext in the facially

neutral selection process, conducted pursuant to the provisions of

the National Treasury Employees Unions’ collective bargaining

agreement, that resulted in the promotion of the purported racially

and sex ually favored agents and Carter’s low evaluation as tenth8 See Texas Dept. of Commun ity Affairs v. Burdine , 450 U.S.

248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207, 215 (1981); Price

, 283 F.3d 715, 72 2 (5th Cir. 2002)(finding employee’s evidence of

pretext insufficient to raise a genuine issue as to whether

employer’s proffered legitimate, non-discriminatory reason was

false).

6 among the twelve applicants. 8 His assertion that CEP experience is

a false or pretextual criterion in the promotion calculus for a GS13 revenue agent to be promoted to work in th e CEP area simply

cannot be maintained.

II. Conclusion

For the foregoing reasons, and those set forth by the district

court, that court’s rulings, orders, and judgments are, in all

respects,

AFFIRMED.