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opinion should not be published and is not precedent except under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

United States Court of Appeals

Fifth Circuit

FILED

June 12, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

No. 05-20236

ERIC HAMIC,

Plaintiff-Appellant,

VERSUS

HARRIS COUNTY W.C. & I.D. NO. 36,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(4:04-CV-1327)

Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

Eric Hamic (“Hamic”) appeals two decisions of the district

court: (1) an order granting summary judgment in favor of Appellee

Harris County W.C. & I.D. No. 36 (“District No. 36”) on Hamic’s

claim that District No. 36 breached its employment contract with

him and (2) an order granting summary judgment in favor of District

No. 36 on Hamic’s claim that District No. 36 unlawfully

discriminated and retaliated against him in violation of 42 U.S.C.
2

§ 2000e for refusing a direct order that Hamic alleges was unlawful

under that section. We affirm both decisions.

I.

On March 29, 2000, Hamic and District No. 36 entered into an

employment contract (the “Contract”) under which Hamic was employed

to serve as the General Manager of District No. 36 for a term of

five years. One provision of the Contract states, “Hamic shall have

the full authority of his position and title.” Hamic alleges that

this provision gave him “the full authority to hire and fire, [to]

evaluate performance and award raises or issue constructive

reviews, and [to] manage the day-to-day operations of the water

district,” authority that was allegedly undermined by the Board of

Directors of District No. 36 (the “Board”), as described below. The

“full authority” provision forms the heart of the contract dispute.

On December 20, 2000, Geraldo Parra, a member of the Board,

allegedly gave Hamic a direct order to fire a non-Hispanic employee

so that an Hispanic employee could be hired. Hamic refused, and,

according to Hamic, relations between himself and three members of

the Board (Geraldo Parra, Eladio Ayala, and Mike Black)

subsequently deteriorated. Hamic makes the following allegations

regarding what occurred after he refused Parra’s order: (1) on

various occasions, members of the Board “attempted to coerce,

order, and otherwise induce [Hamic] to hire only Hispanics

and . . . made remarks . . . show[ing] an animus toward[s] ‘white’

or Caucasian persons”; (2) on various occasions, members of the
3

Board “expressly usurped the authority of [Hamic] to hire and fire

Water District employees and hired employees without the consent or

approval of [Hamic]”; (3) on various occasions, members of the

Board made false accusations to third parties about Hamic’s

expertise, managerial abilities, and managerial decisions and

falsely attributed various problems to him; (4) members of the

Board removed Hamic’s business telephone; (5) members of the Board

“instructed employees to, and allowed employees to, refuse to

follow [Hamic’s] directions in his capacity as General Manager”;

(6) on various occasions, Mike Black ordered Hamic “to perform

irregular and suspect acts in an attempt to exacerbate the already

hostile working environment and interfere with [Hamic’s] ability to

do his job,” namely, he ordered Hamic “to make a report of every

conversation that [Hamic] had during the day to include any

conversation with his wife” and issued “numerous burdensome ‘to do’

lists that were not approved by a quorum of the Board”; (7) members

of the Board engaged in general daily harassment; and (8) Eladio

Ayala testified that as part of a “‘plan,’” he, Geraldo Parra, and

Mike Black “‘slowly . . . made things more difficult for [Hamic] by

giving him trouble with everything he did, by undermining his

authority with the employees, and taking away his duties such as

hiring and firing, so that he eventually became just a

figurehead.’” Hamic alleges that these conditions created a hostile

work environment and constituted retaliation for his refusal to

comply with Parra’s direct order. These conditions form the basis
2Hamic’s resignation was not effective until August 17, 2002.

3The TCHR does not appear to have issued a Right to Sue Letter,

but that is irrelevant here where Hamic only appeals his federal

employment discrimination cause of action.

4The case was removed on federal question grounds pursuant to a

§ 1983 claim that Hamic later dropped. Hamic tried to remand the

case after dropping his § 1983 claim, but the court ruled that

remand was not proper because of the federal employment

discrimination charge Hamic brought in his amended complaint.

4

of Hamic’s employment discrimination charge (as well as the factual

basis for his breach of contract claim).

Hamic reported the above conditions to the Board and to the

attorney for District No. 36, but, according to Hamic, conditions

did not improve. On June 26, 2002, Hamic filed a charge of

discrimination with the Texas Commission on Human Rights (“TCHR”)

and the Equal Employment Opportunity Commission (“EEOC”), and on

July 17, 2002, Hamic voluntarily resigned from his position as

general manager, a resignation he characterizes as constructive

discharge.2 The EEOC issued Hamic a Right to Sue Letter on February

19, 2003, and the U.S. Department of Justice issued a Right to Sue

Letter on June 27, 2003.3

On July 16, 2002, Hamic filed suit in Texas state court,

claiming that District No. 36 had violated its employment contract.

District No. 36 removed the case to federal court, where Hamic

amended his complaint to add an employment discrimination charge

under federal law, specifically, a hostile environment claim under

42 U.S.C. § 2000e-2 and a retaliation claim under § 2000e-3.4
5See, e.g., Pegram v. Honeywell, Inc., 361 F.3d 272, 279-80 (5th

Cir. 2004) (describing the continuing violations doctrine).

5

District No. 36 moved for summary judgment on both issues, breach

of contract and employment discrimination. On August 6, 2004, the

district court granted District No. 36’s motion in part, ruling

that Hamic take nothing on his breach of contract claim. Hamic

moved for reconsideration. The district court denied Hamic’s motion

and ordered District No. 36 to file another motion for summary

judgment, which it did. This motion, which addressed Hamic’s

employment discrimination charge and argued that some of the acts

alleged in support thereof were time barred, was denied. However,

the district court later vacated the denial, entered the opposite

ruling, and ordered Hamic to take nothing on his employment

discrimination charge after reconsidering the parties’ submissions

and hearing arguments from both parties as to whether the

continuing violations doctrine5 applied in Hamic’s case to save any

time barred acts (the court decided it did not). The court entered

final judgment in favor of District No. 36, and Hamic timely

appealed, arguing that a material question of fact exists regarding

his breach of contract claim that precludes summary judgment and

that the district court erred in refusing to apply the continuing

violations doctrine to his § 2000e-3 retaliation claim.

II.

This Court reviews a grant of summary judgment de novo,
6

applying the same standard as the district court. Wheeler v. BL

Dev. Corp., 415 F.3d 399, 401 (5th Cir. 2005). Summary judgment is

appropriate if no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. FED. R.

CIV. P. 56(C). The Court views the evidence in the light most

favorable to the non-movant. Wheeler, 415 F.3d at 401-02. The nonmovant must go beyond the pleadings and come forward with specific

facts indicating a genuine issue for trial to avoid summary

judgment. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986)). A genuine issue of material fact exists when the evidence

is such that a reasonable jury could return a verdict for the nonmovant. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)). Summary judgment is appropriate, however, if the nonmovant “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case.” Id.

(quoting Celotex, 477 U.S. at 322-23). 

A.

With respect to Hamic’s breach of contract claim, the district

court held that District No. 36 did not breach its contract to

employ Hamic as general manager with the full authority of that

position and title. It reasoned that because the Board, by law,

delegates authority to the general manager in its discretion and

because the Board’s delegation defines the position, the general
6See TEX. WATER CODE ANN. § 49.056(a) (Vernon 2000) (“The board may

employ or contract with a person to perform such services as

general manager for the district as the board may from time to time

specify. The board may delegate to the general manager full

authority to manage and operate the affairs of the district subject

only to orders of the board.”); see also id. § 49.056(b)

(describing the board’s discretion to delegate personnel decisions

to the general manager).

7

manager’s “full authority” is whatever the Board says it is.6

Moreover, the court found that neither the Water Code nor the

Contract describes Hamic’s specific authority; rather, they explain

how Hamic’s authority is to be determined: by the Board. Thus, the

court determined that Hamic’s authority as general manager under

the Contract was not breached by the Board’s decision to

participate in the hiring process because the Board retained the

ultimate authority to manage the district; nor was Hamic’s

authority breached by any acts of individual members of the Board

that undermined Hamic’s authority because the acts did not prevent

him from doing his job, they simply made his job more difficult.

Having carefully reviewed the record and the parties’ briefs, we

affirm the district court’s decision ordering Hamic to take nothing

on his breach of contract claim essentially for the reasons stated

by the district court.

B.

With respect to Hamic’s employment discrimination charge, the

district court held that (1) the charge was not subject to the

continuing violations doctrine; (2) the order to fire an Hispanic

person was outside the limitations period and could not support any
7Unfortunately, the district court did not publish a written

decision, so we have had to piece together its holding from the

transcript of a hearing the judge held on February 15, 2005. We

have previously urged courts to provide findings of fact and

conclusions of law when granting summary judgment, and we do so

again here. See Thomas v. N.A. Chase Manhattan Bank, 994 F.2d 236,

241 n.6 (5th Cir. 1993) (citing Wildbur v. Arco Chem. Co., 974 F.2d

631, 644 (5th Cir. 1992); Williamson v. Tucker, 645 F.2d 404, 411

(5th Cir.), cert. denied, 454 U.S. 897, 102 S. Ct. 396, 70 L. Ed.

2d 212 (1981); Boazman v. Economics Lab., Inc., 537 F.2d 210, 213

n.5 (5th Cir. 1976)).

8

acts that occurred in 2002; and (3) any acts that occurred in 2002

did not otherwise illustrate ethnic retaliation or discrimination.7

Hamic only appeals the district court’s decision to the extent that

it failed to apply the continuing violations doctrine to his

retaliation claim. We affirm the district court’s decision in that

respect.

A plaintiff, like Hamic, who initially institutes proceedings

with an appropriate state agency must file a Title VII employment

discrimination charge with the EEOC within 300 days of the

challenged discrimination. See 42 U.S.C. § 2000e-5(e)(1); see also

Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003). The

continuing violations doctrine is an equitable doctrine that

extends the limitations period on otherwise time barred claims when

the unlawful employment practice in question manifests itself over

time, rather than as a series of discrete acts. Pegram v.

Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004). Previously, a

plaintiff was relieved of establishing that all alleged

discriminatory conduct occurred within the actionable period if he
9

could show a series of related acts, one or more of which fell

within the limitations period. Id. However, the Supreme Court has

clarified that “discrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in timely

filed charges.” Id. (citing Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 113 (2002)). The Fifth Circuit states the rule as

follows: “claims based on discrete acts are timely only where such

acts occurred within the limitations period, and . . . claims based

on hostile environment are only timely where at least one act

occurred during the limitations period.” Id. at 279-80.

Hamic argues on appeal that the district court should have

applied the continuing violations doctrine to his § 2000e-3

retaliation claim. He asserts that the actions taken against him

were not discrete acts, but rather an ongoing pattern of

retaliation, subject to the continuing violations doctrine.

However, retaliation is, by definition, a discrete act, not a

pattern of behavior. See Mattern v. Eastman Kodak Co., 104 F.3d

702, 705-07 (5th Cir. 1997). It requires an adverse employment

action, which has been defined in this Circuit as an ultimate

employment decision, such as “‘hiring, granting leave, discharging,

promoting, and compensating.’” See id. at 707 (quoting Dollis v.

Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)). Accordingly, postMorgan, a plaintiff can only recover for retaliation to the extent

that it occurred within the limitations period, that is, the
8Hamic urges in his reply brief that, contrary to the district

court’s decision, he was demoted, he resigned as a result of a

hostile environment, and he was constructively discharged. However,

we do not consider arguments raised for the first time in a reply

brief. Wallace v. County of Comal, 400 F.3d 284, 292 (5th Cir.

2005).

10

continuing violations doctrine does not apply to retaliation. See

Pegram, 361 F.3d at 279-80. Therefore, Hamic’s argument that the

district court should have applied the continuing violations

doctrine to his retaliation claim must fail.

Hamic does not otherwise appeal the district court’s

decision.8 Accordingly, we affirm the district court’s decision

that Hamic take nothing on his employment discrimination charge.

III.

For the foregoing reasons, we AFFIRM the decisions of the

district court granting summary judgment in favor of District No.

36.