IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-60676

Summary Calendar

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WILLIAM C. BOYKINS,

Plaintiff-Appellant,

versus

ENTERGY OPERATIONS, INC.; AZIZ KHANIFAR,

Individually and in their official capacity

as supervisors officers and/or agents of

Entergy Operations, Inc.; MIKE BAKARICH,

Individually and in their official capacity

as supervisors, officers and/or agents of

Entergy Operations, Inc.; RANDY HUTCHINSON,

Individually and in their official capacity

as supervisors, officers and/or agents of

Entergy Operations, Inc.; FRED WALSH,

Individually and in their official capacity

as supervisors, officers and/or agents of

Entergy Operations, Inc.; FRANK WAGNER,

Individually and in their official capacity

as supervisors, officers and/or agents of

Entergy Operations, Inc.; DON HINTZ,

Individually and in their official capacity

as supervisors, officers and/or agents of

Entergy Operations, Inc.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Mississippi

3:97-CV-348-WS

_________________________________________________________________

April 16, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.
 

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this opinion should not be published and is not precedent except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

 

1Boykins also sued Aziz Khanifar, Mike Bakarich, Randy

Hutchinson, Fred Walsh, Frank Wagner, and Don Hintz individually

and in their official capacities as Entergy supervisors. The

district court correctly dismissed Boykins’s claims against these

named defendants on the grounds that Title VII does not impose

liability on individuals who do not meet the statutory definition

of “employer.” Grant v. Lone Star Co., 21 F.3d 649, 652-53 (5th

Cir. 1994) (citations omitted).

2

PER CURIAM:*

The appellant, William C. Boykins, proceeding pro se, appeals

the district court’s grant of summary judgment in favor of Entergy

Operations, et al.,1 on his claims for race discrimination and

unlawful retaliation under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. In granting Entergy’s motion for

summary judgment, the district court first applied the doctrine of

res judicata and dismissed each of Boykins’s claims that alleged

race discrimination or retaliation up to November 18, 1996. The

district court then addressed Boykins’s remaining claims for

unlawful retaliation. The district court concluded that summary

judgment was proper as to these claims because Boykins failed to

establish a prima facie case, namely that he suffered an adverse

employment action, and that his protected activity was the “but

for” cause of the adverse employment decision.

On appeal, Boykins argues that the district court erred in

granting summary judgment against him because he established a

prima facie case of unlawful retaliation. Boykins contends that he
3

suffered an adverse employment action when Entergy instructed him

to either transfer to another work site, take part in a performance

improvement program, or “accept a constructive discharge.” Boykins

argues that when he refused each of the three options, he was

placed in a “block nine category,” and later subjected to

“disparate conditions and a hostile environment.” Boykins further

contends that he was issued a March 5, 1998 termination letter,

which provided that he would be terminated in one month if his

performance did not improve. Finally, Boykins argues that the

causal requirement for this retaliation claim is met because

Entergy took the aforementioned actions immediately after he filed

the instant Title VII suit. 

As a threshold matter, we agree with the district court that

the doctrine of res judicata precludes each of Boykins’s claims

alleging race discrimination and retaliation for the period of time

extending through November 18, 1996. We are satisfied that each of

these claims could have been adjudicated in Boykins’s previous

Title VII race discrimination suit against Entergy, which was filed

on October 19, 1995, and subsequently dismissed on November 18,

1996. See Jackson v. Widnall, 90 F.3d 710, 715 n.8 (5th Cir. 1996)

(citing Nilsen v. City of Moss Point, 701 F.2d 556, 560 (5th Cir.

1983) (en banc). We turn now to address the merits of Boykins’s

retaliation claim.

We have previously explained that to defeat a motion for

summary judgment on an unlawful retaliation claim, the plaintiff
 

2The block nine ranking is one of the lowest ranked categories

in a ranking scheme used by Entergy in 1995 and 1996 to access its

employees’ comparative performance and potential. 

4

must show that there exists a conflict in substantial evidence on

the ultimate issue for the trier of fact--whether the adverse

employment action would not have occurred “but for” the plaintiff’s

protected activity. Long v. Eastfield College, 88 F.3d 300, 308

(5th Cir. 1996) (citing Rhodes v. Guiberson Oil Tools, 75 F.3d 989,

993 (5th Cir. 1996) (en banc)). This standard assumes, however,

that the employer has taken some action against the plaintiff that

is otherwise actionable under Title VII. Because it is clear, as

a matter law, that Boykins has suffered no adverse employment

action, we need not reach this issue on appeal. 

We analyze adverse employment actions in a stricter sense than

some other circuits. Burger v. Central Apartment Management, No.

98-10290, 1999 WL 101392, at *4 (5th Cir. Mar. 16, 1998). The

record is clear that the block nine ranking that Boyd complains of

on appeal is tantamount to a low performance review or negative

evaluation.2 A low performance ranking, in and of itself, has

only a tangential effect on the conditions of employment and,

consequently, it does not rise to the level of an adverse

employment action. See Douglas v. DynMcDermott Petroleum

Operations Co., 144 F.3d 364, 373 n.11 (5th Cir. 1998), cert.

denied, 119 S.Ct. 798 (1999) (citing Mattern v. Eastman Kodak Co.,

104 F.3d 702, 707 (5th Cir. 1997), cert. denied, 118 S.Ct. 336

(1997). We likewise conclude that the mere threat of transfer
5

fails to qualify as an adverse employment action. Mattern, 104

F.3d at 708; Burger v. Central Apartment Management, No. 98-10290,

1999 WL 101392,at *4 (5th Cir. Mar. 16, 1998). At best, this

threat constitutes an “interlocutory” or “mediate” act, which is

outside the purview of the Title VII. See Mattern, 104 F.3d at

708. Regarding the March 5, 1998 warning letter, it seems that

Boykins failed to exhaust his administrative remedies with the

EEOC. In any event, the law is clear that a threat or “final

warning” of termination has no immediate impact on a plaintiff’s

working conditions, so as to constitute an adverse employment

action. Id.

In sum, Boykins has failed to show that Entergy took any

action against him akin to the ultimate employment decisions that

Title VII was designed to address–-“hiring, granting leave,

discharging, promoting and compensating.” Burger, 1999 WL, at *3

(citing Mattern, 104 F.3d at 708). Because Boykins’s summary

judgment proof fails in this regard, our inquiry ends here. We

therefore do not address his remaining arguments on appeal. We

thus conclude that the district court did not err in granting

summary judgment in favor of Entergy. 

The judgment of the district court in all aspects is

A F F I R M E D.