Green vs. West, (5th Cir. 1999)
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50967
Summary Calendar
BOBBY L. GREEN,
Plaintiff-Appellant,
VERSUS
TOGO D. WEST, JR., Secretary of the Army,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(SA-97-CV-1148)
September 9, 1999
Before SMITH, BARKSDALE, and a suspense") and engaged in "constant
PARKER, Circuit Judges. harassment, intimidation, and discriminatory
actions" against him on account of (1) Green's
PER CURIAM:* race (black) and (2) the fact that Green had part icipated in a group grievance filed by Bobby Green sued his employer, the U.S. employees of the ADTB a couple of months Army, claiming racial discrimination, reprisal earlier. Green contends that this campaign of (retaliation), and constructive discharge. The discrimination and retaliation culminated in his district court granted summary judgment, and constructive discharge. we affirm. Green filed a grievance against Castorena. I. Lieutenant Colonel John Jeffries denied the Green was working as an Alcohol and Drug grievance on the ground that it was untimely Instructor at the Behavioral Science Division, filed, whereupon Green pursued his grievance Alcohol and Drug Training Branch of the U.S. to the second and third steps of the grievance Army Medical Department Center and School. process, asking that the letter be rescinded and He asserts t hat his supervisor, Lieutenant that all alleged reprisal behavior against him be Colonel Roberto Castorena, issued a "letter of stopped. Colonel T.R. Bryne, Dean for the counseling" against him (purportedly for Academic of Health Sciences, denied the third- "failing t o comply with instructions and meet step grievance, finding that the letter of counseling had been appropriately issued. Green was offered an early retirement package, which he claims to have accepted * Pursuant to 5TH CIR. R. 47.5, the court because he "could not tolerate the has determined that this opinion should not be discrimination and unfair treatment" he had published and is not precedent except under the been receiving. limited circumstances set forth in 5TH CIR. R. 47.5.4. II. summary judgment evidence." Forsythe, A claim of discrimination or reprisal must F.3d at 1533; see also Douglass v. United include the demonstration of adverse Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th employment action. Urbano v. Continental Cir. 1996) (en banc).
Airlines, Inc., 138 F.3d 204, 206 (5th Cir.) (discussing elements of discrimination cause of Because Green failed to establish his prima action), cert. denied, 119 S. Ct. 509 (1998); facie cases of discrimination and reprisal and Nowlin v. Resolution Trust Corporation, failed to carry his burden on the claim of 33 F.3d 498, 507 (5th Cir. 1994) (discussing constructive discharge, the court properly elements of reprisal cause of action). As the granted summary judgment. district court correctly noted, Green has failed to make such a demonstration as a matter of AFFIRMED. law.
Under this court's precedent, only ultimate employment decisions can qualify as adverse employment actions. See Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995). Threats, reprimands, and warnings, because they do not constitute ultimate decisions, do not suffice as adverse employment actions. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir.), cert. denied,
Green's only concrete allegation of discrimination is the letter for counseling. This plainly does not constitute an adverse employment action under Dollis or Mattern.
Green's unsubstantiated, conclusional allegations of "harassment, intimidation, and discriminatory actions" likewise do not constitute ultimate employment decisions and are not competent summary judgment evidence. See Forsythe v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
Green's complaint that he was constructively discharged would constitute an ultimate employment decision, but this allegation fails for lack of proof. A plaintiff alleging constructive discharge must produce facts tending to demonstrate working conditions "so intolerable that a reasonable employee would feel compelled to resign." See Barrow v. New Orleans S.S. Ass'n, 10 F.3d 292, 297 (5th Cir. 1994). Green offers us only the letter of counseling and his unsubstantiated assertions of discrimination generally. The letter most certainly does not rise to the level described in Barrow, and, as m e n t i o n e d p r e v i o u s l y , G r e e n ' s "unsubstantiated assertions are not competent
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This document cites
- U.S. Court of Appeals for the Fifth Circuit - Clarence Barrow, Plaintiff-Appellant, v. New Orleans Steamship Association, Et Al., Defendants-Appellees., 10 F.3d 292 (5th Cir. 1994)
- U.S. Court of Appeals for the Fifth Circuit - 70 Fair Empl.Prac.Cas. (Bna) 517, 68 Empl. Prac. Dec. P 44,180 Mary Dollis, Plaintiff-Appellant, v. Robert E. Rubin, Secretary of the Department of the Treasury, Defendant-Appellee., 77 F.3d 777 (5th Cir. 1995)
- U.S. Court of Appeals for the Fifth Circuit - 78 Fair Empl.Prac.Cas. (Bna) 839, 73 Empl. Prac. Dec. P 45,366 Mirtha Urbano, Plaintiff-Appellant, v. Continental Airlines, Inc., Defendant-Appellee., 138 F.3d 204 (5th Cir. 1998)
- U.S. Court of Appeals for the Fifth Circuit - Jean G. Mattern, Plaintiff-Appellee, v. Eastman Kodak Company and Eastman Chemical Company, D/B/a Texas Eastman Company, Defendants-Appellants., 104 F.3d 702 (5th Cir. 1997)
- U.S. Court of Appeals for the Fifth Circuit - Jan Forsyth, Et Al., Plaintiffs-Appellants, v. John Holman Barr, Et Al., Defendants, Mack Vines, Dwight Walker, Willard Rollins, Defendants-Appellees, v. City of Dallas, Texas, Defendant-Appellee-Appellant., 19 F.3d 1527 (5th Cir. 1994)
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