In this employment discrimination case, appellant Ron L. Pegram (“Pegram”) appeals the district court’s grant of summary judgment in favor of his former employer Honeywell, Inc., (“Honeywell”) dismissing Pegram’s claims of racial and disability discrimination under 42 U.S.C. § 1981 (2003) and the Texas Commission for Human Rights Act (“TCHRA”), TEX. LAB. CODE ANN. § 21.002 et seq. (Vernon 1998). Pegram also challenges the district court’s dismissal of his claims to recover employee benefits for violations under the Employment Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1140, as well as the common law theories of breach of contract and promissory estoppel. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The relevant background, drawn in the light most favorable to the plaintiff, is as follows: Pegram, an African-American sales employee, began working at Honeywell in 1991. In August 2000, Pegram was promoted to the position of Total Plant Account Manager (“TPAM”), in the power industry, otherwise known as the Industrial Automation and Control (“IAC”) division. As a TPAM, Pegram sold a wide-range of Honeywell products, with Pe-gram’s yearly sales quota in the amount of $3-^4 million.
*277 In September 2000, Honeywell geographically reorganized its IAC division’s sales territories and reporting relationships. After the reorganization, Pegram reported to David Spencer, the IAC division’s Regional Sales Manager, and Guy Grumbles, the Solutions Sales Director for the eastern sales region. In October of 2000, Pegram learned that Grumbles expressed concerns about Pegram’s ability to satisfactorily accomplish his tasks as a TPAM. Thereafter, Spencer and Grumbles attempted to persuade Pegram to accept a position as a Service Account Manager (“SAM”). The SAM position offered Pegram a base salary comparable to a TPAM, but with a lower incentive pay.
On December 14, 2000, Pegram aggravated a pre-existing back condition, during an automobile accident, and Honeywell subsequently transferred him to a SAM position. 1 Spencer and Grumbles then hired a white male to replace Pegram in the TPAM position. On several occasions Pegram expressed disillusionment in serving as a SAM and an unwillingness to continue in that role. Despite Pegram’s desire to continue working as a TPAM, Spencer informed him that there were no available TPAM positions in Pegram’s region at the time, and advised Pegram to search for a TPAM position elsewhere in the company.
On March 13, 2001, while in pursuit of other TPAM opportunities, Pegram sent an email to Honeywell officials explaining that he had scheduled back surgery on April 16, 2001, and that he would need short-term disability benefits. The next day, Pegram met with Spencer and a representative of Honeywell’s Human Resources Department in Houston to discuss his employment situation. During the Houston meeting, Spencer apprised Pe-gram that no TPAM positions were currently available, and that unless Pegram was able to secure another position at Honeywell, he would be terminated. Pe-gram was unable to secure such a position, and was terminated. Thereafter, Pegram applied for, and was denied, any short-term disability benefits from Honeywell.
On April 5, 2001, Pegram filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Texas Commission on Human Rights (“TCHR”) alleging employment discrimination based upon race and disability. Upon receipt of this Notice of the Right to Sue from the EEOC, Pegram timely filed a complaint in federal court on May 4, 2001. In his complaint, Pegram alleged that Honeywell discriminated against him because of his race in violation of 42 U.S.C. § 1981. He also asserted claims for breach of contract and promissory estoppel under Texas law based upon his claim for short-term disability benefits. On February 7, 2002, Pegram amended the complaint to add claims under the TCHRA for discrimination based upon race and disability, and under section 510 of ERISA for interference with his rights under the short-term disability plan.
On April 30, 2002, Honeywell moved for summary judgment on all of Pegram’s claims. After the parties completed briefing, the district court instructed the parties to submit additional briefing and evidence on whether Pegram’s reassignment was an “adverse employment action” under the TCHRA and section 1981. On February 5, 2003, the district court granted Honeywell’s motion for summary judg *278 ment. Regarding Pegram’s reassignment, the district court held that the transfer did not constitute an adverse employment action. Pegram timely filed a notice of appeal.
STANDARD OF REVIEW
We review a district court’s grant of summary judgment
de novo,
applying the same standards as the district court.
Evans v. City of Houston,
We review the district court’s evidentia-ry rulings for an abuse of discretion.
St. Romain v. Industrial Fabrication & Repair Serv.,
DISCUSSION
I. Timeliness of Federal & State Law Claims
Honeywell asserts on appeal, as it did before the district court, that prior to reaching any substantive issues, this court should find Pegram’s federal and state law claims untimely. The district court granted Honeywell’s motion for summary judgment finding that Pegram’s claims under section 1981 were only actionable if they accrued post May 4, 1999, and Pegram’s state law claims under TCHRA were actionable only if they occurred after October 7, 2000. We affirm.
We begin our analysis by noting that Pegram filed suit alleging discriminatory acts by Honeywell that occurred between 1993 and 1997 and from the period of October 2000 until March 30, 2001. Pe-gram filed a charge of discrimination with the TCHR on April 5, 2001, and he initiated this action in federal court on May 4, 2001. Federal civil rights actions brought under section 1981, which lack an express statute of limitations, are governed by the most closely analogous limitations period provided under state law.
Johnson v. Railway Express Agency,
Continuing Violations Doctrine
Pegram attempts to avoid this apparent untimeliness by invoking the continuing violations doctrine. Specifically, Pegram contends that the district court erred in dismissing his section 1981 and state law claims because Honeywell’s alleged discriminatory acts, relating to Pegram’s race and/or disability, constituted a pattern of discriminatory behavior. We cannot agree.
This court has consistently held that the continuing violations doctrine is equitable in nature and extends the limitations period on otherwise time barred claims only when the unlawful employment practice manifests itself over time, rather than as a series of discrete acts.
Frank v. Xerox Corp.,
The Supreme Court recently clarified the limits of the continuing violations doctrine. In
Nat’l R.R. Passenger Corp. v. Morgan,
the Court held that discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.
1. Section 1981 claims occurring prior to May 4,1999
The continuing violations doctrine does not apply to Pegram’s federal claims under section 1981.
4
The sole discriminatory acts alleged by Pegram, that the district court found untimely, were the denial on account of race of (1) training opportunities; (2) the approval to participate in Honeywell’s MBA program; and (3) interaction with clients. After
Morgan,
a one-time employment event, including the failure to hire, promote, or train, and likewise dismissals and demotions, is a discrete action that “constitutes a separate actionable ‘unlawful employment practice,’ ” and therefore, should place an employee on notice that a cause of action has accrued.
Morgan,
2. TCHRA claims occurring prior to October 7, 2000
Pegram also argues that the district court erred in finding that time-barred TCHRA claims, unlike section 1981 claims, may not be revived through the continuing violations doctrine. When applying the TCHRA, we consider the analogous federal provisions contained in 42 U.S.C. § 2000e (2003) (“Title VII”).
6
Mar-
*281
tineau,
Although Pegram appeals the denial of his time-barred state law claims, we note that the plaintiffs initial brief did not substantively address the district court’s decision on this precise issue. Pegram’s initial brief only raises the issues of Honeywell (1) having racially discriminatory policies, (2) denying him interface with clients and training opportunities, and (3) questioning his abilities. The first issue Pegram raises clearly does not connote disability discrimination. The record shows that the latter two issues occurred prior to Honeywell officials’ awareness of Pegram’s back-related injury, thus, we construe these issues as claims of discrimination on the grounds of race rather than disability. Therefore, this claim is not properly before this court, as it has been waived.
See Webb v. Investacorp, Inc.,
II. Adverse Employment Action Under Section 1981
The district court granted summary judgment in favor of Honeywell on the grounds that Pegram did not satisfy his burden of proof in establishing race discrimination under section 1981. We reverse the district court on this issue.
To survive a summary judgment motion on his section 1981 claim, Pegram must establish, by a preponderance of the evidence, a prima facie case of intentional discrimination.
Shackelford v. Deloitte & Touche, LLP,
*282
Our court has a strict interpretation of the adverse employment element of Pegram’s prima facie intentional discrimination case. Under Title VII principles, which inform our treatment of section 1981 claims, an employment action that “does not affect job duties, compensation, or benefits” is not an adverse employment action.
Banks v. East Baton Rouge Parish Sch. Bd.,
The district court held that Pegram did not suffer an adverse employment action upon his transfer from the TPAM position to the SAM position. In arriving at this conclusion, the district court focused on the incentive compensation to determine whether the transfer was an adverse employment action. Comparing the TPAM and SAM 2001 incentive compensation plans, the district court found the two plans to be the same, and thus held that the reassignment was a lateral transfer rather than an adverse action. Moreover, the court found that the only other evidence Pegram offered was his own subjective belief that he would lose commission as a SAM. Thus, the district court found that Pegram could not raise a fact issue as to whether under the SAM incentive plan Pegram would earn less than he would as a TPAM.
Pegram contends that the district court’s grant of summary judgment in Honeywell’s favor was erroneous. Pegram alleges that he suffered two adverse employment actions: first, upon his termination, and second, upon his transfer from the TPAM to the SAM position. We address each issue in turn.
A. Termination Claim
Pegram claims, pursuant to section 1981, that he was unlawfully terminated on account of his race. Without expressing an opinion on the ultimate merits of his discrimination claim, we hold that the district court erred as a matter of law by not addressing whether Honeywell’s termination of Pegram constitutes an adverse employment action.
9
Even under this court’s stringent “ultimate employ
*283
ment action” standard, it is beyond dispute that a termination constitutes an adverse action.
Mota v. Univ. of Tex. Houston Health Sci. Ctr.,
B. Transfer Claim
1. “Unwanted Transfer” Claim
Pegram argues that a genuine issue of material fact exists as to whether his reassignment from a TPAM to a SAM position constituted an “unwanted transfer” because a SAM merely plays a supporting role to a TPAM.
11
Under this view, a mere subjective standard would suffice to constitute an adverse employment action. This argument has no merit. We have previously held, as a matter of law, that under Title VII principles, an employment transfer may qualify as an “adverse employment action” if the change makes the job “objectively worse.”
Hunt v. Rapides Healthcare Sys. LLC,
Circuit precedent establishes that in cases where the evidence produces no objective showing of a loss in compensation, duties, or benefits, but rather solely establishes that a plaintiff was transferred from a prestigious and desirable position to another position, that evidence is insufficient to establish an adverse employment action.
See Serna v. City of San Antonio,
*284 2. Incentive Pay claim
Pegram does, however, assert more than the mere loss of subjective prestige. Pegram also contends that a genuine issue of material fact exists as to whether his reassignment was a demotion because TP AMs accrue a higher incentive compensation than SAMs. In order to overcome summary judgment, Pegram must show more than a mere lateral transfer; he must present sufficient evidence that the transfer equated to a “shift change that involves changes in duties or compensation or can objectively be characterized as a demotion.”
Hunt,
The summary judgment record shows that Honeywell’s two sales positions are not the same, primarily because TP AM’s and SAM’s sell different items, and consequentially the opportunity for a higher earning potential exists solely in a TPAM position. A TPAM generates new business by selling Honeywell’s core product, and thus, depending on the relative success of the TPAM, presumably has the potential to earn a considerable amount of incentive pay. In contrast, a SAM generally renews existing service contracts of Honeywell client base, and thus, the SAM’s potential to earn significant amounts of incentive compensation therefore appears limited in comparison to a TPAM. Because the record reflects that TPAMs have a higher potential incentive pay than a SAM, a reasonable trier of fact could find the total compensation for the two positions unequal.
Moreover, under the 2001 commission structure endorsed by the district court, the method of calculating incentive compensation for these two positions varied depending on the item sold. In general, the record shows that a TPAM, relative to a SAM, would earn a higher percentage commission on an order. Thus, on these facts, a reasonable trier of fact could find that the incentive compensation packages for the two positions were not equal.
Due to the different incentive pay structures within the 2001 compensation plan, we find a genuine issue of material fact exists as to whether Pegram’s transfer from a TPAM to a SAM created a demotion sufficient to constitute an adverse employment action. 12 Therefore, we hold that the district court erred in deciding that Pegram failed to make a prima facie showing of race discrimination under section 1981.
In the alternative, Honeywell contends that even if Pegram sufficiently made a prima facie showing of racial discrimination, Honeywell was able to fulfill its burden of production on the second step of McDonnell Douglas. Specifically, Honeywell alleges that Pegram’s transfer to the SAM position was done to ensure that Pegram met his service sales quota due to his inexperience as a TPAM. Under the McDonnell Douglas analysis, however, this argument is not dispositive if a triable issue of fact exists with regards to whether the alleged legitimate, nondiscriminatory reason is merely a pretext for discrimination. Sandstad v. CB Richard Ellis, 309 *285 F.3d 893, 897 (5th Cir.2002) (stating that a plaintiff can survive summary judgement, following an employer’s articulation of a legitimate, nondiscriminatory rationale, only “by producing evidence that creates a jury issue as to the employer’s discriminatory animus or the falsity of the employer’s legitimate nondiscriminatory explanation”).
In the instant action, we find that several of Pegram’s allegations in this case raise a question of fact as to whether the reasons Honeywell adduced for transferring him were merely pretextual. First, Pe-gram had prior experience selling Honeywell’s core product. Second, while serving as a TPAM, Pegram excelled in the position and exceeded his sales quota by more than double. Third, while Honeywell claimed Pegram was transferred for lack of TPAM experience, Spencer then replaced Pegram with Billy Dodd, a white employee, who lacked any TPAM experience. Based on the cumulative weight of this evidence, Pegram has met his burden at the summaiy judgment stage.
III. Motion to Strike Exhibit & Testimony
Pegram argues that the district court erred in finding the 2001 compensation plan relevant, and therefore admissible, because the aforementioned plan was not in effect when Pegram was transferred in December 2000. The district court denied Pegram’s motion on the grounds that whether the incentive pay was objectively better for TP AMs than SAMs, the 2001 commission plan best determines the incentive structure in effect had Pegram accepted the transfer and remained employed as a SAM. Pegram also contends that the district court erred in allowing Pickering’s declaration, as Honeywell’s corporate designee, into evidence because Pickering was not listed as a person with knowledge of relevant facts prior to the discovery cut-off. The district court denied Pegram’s motion to strike finding that because Honeywell did not raise a defense on the lack of an adverse employment action until the district court ordered briefing on the issue, Honeywell lacked any knowledge that they would in fact need Pickering’s testimony. The district court also found that Pegram did not seek to take Pickering’s testimony prior to his summary judgment deadline nor did Pe-gram ask for an extension of his response deadline to enable him to take the deposition of Pickering. We affirm the district court.
Pegram cites no authority in support of either argument, other than his disagreement with the district court’s decision. Further, we find that the district court’s decision to consider additional evidence was not an abuse of discretion.
See Resolution Trust Corp. v. Starkey,
IV. Disability Claim under the TCHRA
The district court granted summary judgment in favor of Honeywell with regard to Pegram’s disability claim under the TCHRA. The district court found that Pegram did not suffer from a disability protected by the TCHRA. Under the TCHRA, which parallels the language of the Americans with Disabilities Act (“ADA”),
13
42 U.S.C. § 12112(a), a person
*286
is disabled if he or she “either (1) is actually disabled, (2) is regarded as being disabled, or (3) has a record of being disabled.”
Dupre v. Charter Behavioral Health Sys.,
Pegram argues that he is “disabled” under the TCHRA because he suffers from a degenerative disk disease. Due to his back condition, Pegram contends that he is impaired in climbing stairs, walking, standing for longer than five minutes, sitting for longer than five minutes, with balance, and pain. Honeywell concedes that Pegram suffers from an “impairment” as defined under the TCHRA. Honeywell, however, counters that Pegram’s “impairment” did not interfere with his ability to perform at least one major life activity, and therefore is not legally redressable. We agree with Honeywell.
To recover as a “disability” under TCHRA, a “plaintiff must prove a substantial limit with specific evidence that
his particular
impairment substantially limits
his particular
major life activity.”
Waldrip,
Nonetheless, Pegram argues in the alternative that even if he was not “disabled,” he was “regarded as” being disabled by Honeywell. Specifically, Pegram alleges that Honeywell viewed him as disabled in that he was demoted after informing management of his back injury and subsequently terminated after informing the company he needed disability leave. We cannot agree.
*287
Under the ADA and TCHRA, an individual who is not in fact disabled may have a viable claim that he was “regarded as” disabled if the employer mistakenly believes that: (1) the individual has a physical impairment that is substantially limiting; or (2) an actual, but not-limiting impairment is substantially limiting.
See Sutton v. United Air Lines, Inc.,
We find the district court’s analysis correct. Pegram clearly does not fall under the first prong of Sutton (i.e. has no impairment at all but is regarded by the employer as having a substantially limiting impairment) because it is undisputed that Pegram’s back injury was indeed an impairment.
With regards to the second prong, (i.e. has an impairment which is not substantially limiting but which the employer perceives as constituting a substantially limiting impairment), to survive summary judgment, an employee must show that an employer regarded the employee as substantially limited in his ability to work by finding that the employee’s impairment forecloses his ability to perform a class of jobs or a broad range of jobs.
Id.; Pryor v. Trane,
V. ERISA Claim for Short-Term Disability Benefits
Pegram argues that Honeywell violated section 510 of ERISA, 29 U.S.C. § 1140, by interfering or attempting to interfere with his rights to ERISA-gov-erned benefits and by allegedly discharging him for exercising his rights under an ERISA-governed plan. The district court found that Pegram failed to challenge Honeywell’s assertion that the plan at issue (i.e. Honeywell’s short-term disability plan) is not an ERISA-governed plan, and therefore Pegram cannot assert a section 510 claim against Honeywell. We generally refuse to consider arguments not raised in the district court unless it is a pure question of law and our refusal to consider the question will result in a miscarriage of justice.
Reickenbacker v. Foster,
VI. Texas State-Law Breach of Contract & Promissory Estoppel Claims
Finally, we turn to considering Pegram’s claims under the theories of breach of *288 contract and promissory estoppel. Pe-gram argues that he is entitled to recover the health insurance and disability benefits he did not receive through these claims.
Under Texas law, a plaintiff alleging a breach of contract must establish (1) the existence of a valid contract; (2) that the plaintiff performed or tendered performance; (3) that the defendant breached the contract; and (4) that the plaintiff was damaged as a result of the breach.
Runge v. Raytheon E-Systems, Inc.,
We also find that the district court correctly rejected Pegram’s promissory estoppel claim. Pegram claims he relied upon Honeywell’s promise that he would receive insurance coverage. Under Texas law, a plaintiff alleging promissory estoppel must establish (1) a promise; (2) foreseeability reliance thereon by the promisor; (3) substantial reliance thereon by the promisee.
English v. Fischer,
CONCLUSION
For the foregoing reasons, we affirm the district court’s order insofar as the district court grants summary judgment in favor of Honeywell on the timeliness of the state law claims, motion to strike, the disability discrimination under the TCHRA, the ERISA claim, and the state law breach of contract and promissory estoppel claims. However, we reverse the district court’s order insofar as the district court granted summary judgment for Honeywell on Pe-gram’s adverse employment claims, and we remand this matter to the district court for further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
Notes
. Initially, the SAM position occupied by Pe-gram included small project sales, leading Honeywell to describe Pegram’s first IAC TPAM as a “hybrid SAM” position. Shortly after February 1, 2001, Spencer told Pegram that he would be assuming "pure” SAM duties.
. The two-year limitations period proscribed by Tex.Rev.Civ.Stat. art. 5526 applies to section 1981 claims.
. Section 21.055 of the TCHRA provides:
An employer, labor union, or employment agency commits an unlawful employment practice if the employer, labor union, or employment agency retaliates or discriminates against a person who, under this chapter:
*279 (1) opposes a discriminatory practice;
(2) makes or files a charge;
(3) files a complaint; or
(4) testifies, assists, or participates in any manner in an investigation, proceeding, or hearing.
Tex. Lab.Code Ann. § 21.055 (Vernon 1998).
. The Civil Rights Act of 1866 [42 U.S.C. § 1981] prohibits discrimination on the basis of race.
The relevant provision of section 1981 reads as follows:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981 (2003).
. This court has not expressly ruled on whether client access constitutes a discrete act. We note however, that the Court in
Morgan
did not limit discrete acts solely to termination, failure to promote, denial of transfer, or refusal to hire. The Court stated that the aforementioned were merely "easy to identify’’ as discrete acts.
Morgan,
. Section 2000e-2(a) of Title VII states in relevant part:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(l) (1994).
. We have previously held that race discrimination claims brought pursuant to section 1981 are governed by the same evidentiary framework applicable to employment discrimination claims under Title VII.
See Walker v. Thompson,
. We recognize Pegram's and the EEOC's contention that in the aftermath of the Supreme Court's decisions in
Faragher
v.
City of Boca Raton,
. The district court’s opinion suggests that the sole discrimination claim, at the trial level, was the transfer. Under this court's precedent, the termination claim would be foreclosed on appeal if Pegram did not raise it at the trial level.
See Perez
v.
Region 20 Educ. Center Serv.,
. On remand, we are confident that in addressing Pegram’s termination claim, the district court will fully apply the complete McDonnell Douglas analysis to all of the parties competing claims.
. We note that, as pertains to the reassignment issue, Pegram and the EEOC make other claims as well. After fully considering the merits, and the applicable law, we reject Pe-gram's and the EEOC's other reassignment arguments as without merit.
. This is not to say that any lateral transfer that has a "minor and indirect effect" on one’s compensation is sufficient to transform a lateral transfer into a demotion.
See Williams v. Bristol-Myers Squibb Co.,
. We have previously held that the TCHRA claim is analogous to the ADA claim, and
*286
generally would be treated similarly.
Talk v. Delta Airlines, Inc.,