Filed: Sep. 13, 1999
Latest Update: Mar. 02, 2020
Summary: 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) Gree
Summary: 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..
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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 that 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 to comply with instructions and meet step grievance, finding that the letter of
counseling had been appropriately issued.
Green was offered an early retirement
*
Pursuant to 5TH CIR. R. 47.5, the court package, which he claims to have accepted
has determined that this opinion should not be because he “could not tolerate the
published and is not precedent except under the discrimination and unfair treatment” he had
limited circumstances set forth in 5TH CIR. R. been receiving.
47.5.4.
II. summary judgment evidence.” Forsythe,
A claim of discrimination or reprisal must 19 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,
522 U.S. 932 (1997).
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
me 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
2
