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            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                      No. 13-20575                               FILED
                                                                          February 12, 2015
                                                                            Lyle W. Cayce
PRIMUS E. JACKSON, JR.,                                                          Clerk

                                                 Plaintiff - Appellant

v.

HONEYWELL INTERNATIONAL, INCORPORATED,

                                                 Defendant - Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-4404


Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
        Appellant Primus Jackson (“Jackson”) appeals the district court’s denial
of his Rule 59(e) Motion for Reconsideration after its grant of summary
judgment in favor of Honeywell International, Inc. (“Honeywell”). Jackson
filed suit against Honeywell following the termination of his employment,
alleging various discrimination and retaliation claims under state and federal
law.        We AFFIRM the district court’s grant of summary judgment for




        *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 13-20575
Honeywell on all of Jackson’s claims, pretermitting the issue whether the
district court abused its discretion by denying the Motion for Reconsideration.
                           I.    BACKGROUND
      Jackson was a long-time employee of Honeywell, hired in 1968 and
promoted to Principal Engineer in 1992. Between 2001 and 2009, Tin Ngo
(“Ngo”) was Jackson’s technical manager.
      Beginning in 2005, and again in 2006 and 2009, Ngo noted in
performance reviews that Jackson’s performance fell below expectations. In
2006, Ngo provided Jackson with guidance for improvement.            Following
Jackson’s 2009 performance review, Jackson complained to Human Resources
that Ngo was treating him unfairly. Jackson contended that the evaluation of
his work was not accurate, Ngo did not recognize his achievements, and his
pay was adversely affected by his low performance evaluations. Jackson was
required to acknowledge a Letter of Expectation (“LOE”) based upon his
unsatisfactory performance review in 2009.
      Subsequently, Ngo placed Jackson on a Performance Improvement Plan
(“PIP”).   The PIP gave Jackson 60 days to demonstrate immediate and
continuous improvements in his performance. The PIP expressly stated that
if Jackson did not meet stated expectations or show improvement, he would be
subject to further discipline, up to and including termination. Months later,
Ngo determined that Jackson had not successfully completed his PIP. In 2010,
as the project Jackson worked on was coming to an end, he was assigned to
work on two other projects. He was also assigned to a new technical manager,
Victor Nguyen (“Nguyen”). The PIP continued, but when Jackson failed to
complete it after more than three months, Nguyen decided, in consultation
with his manager Karen Blumentritt (“Blumentritt”), to terminate Jackson’s
employment. The termination was effective on July 8, 2010.


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                                  No. 13-20575
      Jackson filed suit against Honeywell, alleging: (1) race discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”), 42 U.S.C. § 1981 (“Section 1981”) and Texas Labor Code § 21 et
seq. (“Texas Labor Code”); (2) retaliation in violation of Title VII, Section 1981
and the Texas Labor Code; (3) a hostile work environment based on race in
violation of Title VII, Section 1981, and the Texas Labor Code; (4) hostile work
environment based on age in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 623 et seq., and the Texas Labor Code;
and (5) age discrimination in violation of the ADEA and the Texas Labor Code.
      On January 15, 2013, Honeywell moved for summary judgment.
Jackson’s response was due on February 4, 2013. However, Jackson did not
file a response. According to exhibits later filed by Jackson, Jackson’s counsel,
Shalanda Moore (“Moore”), was hospitalized on January 23, 2013.               On
February 7, 2013, Moore was released from the hospital and began in-patient
rehabilitation, where she continued to lack her computer and files.           On
March 15, 2013, Moore was discharged from the rehabilitation facility and has
since been on medical leave and recovering at a relative’s home. On April 17,
2013, the district court granted Honeywell’s motion for summary judgment and
entered final judgment in favor of Honeywell. On April 29, 2013, Jackson filed
a Rule 59(e) Motion for Reconsideration based on Moore’s hospitalization. The
district court denied this motion. Jackson timely appealed.
                II.   MOTION FOR SUMMARY JUDGMENT
      After careful review of the complete record, including the supplemental
materials proffered in Jackson’s Motion for Reconsideration, we find no




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                                      No. 13-20575
genuine issue of material fact concerning his claims under Title VII, the ADEA,
42 U.S.C. 1981, or their counterparts in Texas law. 1
   A. Standard of Review
       We review a district court's grant of summary judgment de novo,
applying the same standard on appeal as that applied below. Tiblier v. Dlabal,

, 1007 (5th Cir. 2014). Summary judgment is proper “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
genuine dispute as to a material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 

, 248, 

, 2510 (1986). “[T]his
court construes ‘all facts and inferences in the light most favorable to the
nonmoving party.’ ” McFaul v. Valenzuela, 

, 571 (5th Cir. 2012)
(quoting Dillon v. Rogers, 

, 266 (5th Cir. 2010)). But “[s]ummary
judgment may not be thwarted by conclusional allegations, unsupported
assertions, or presentation of only a scintilla of evidence.” 

not
limited to the district court's reasons for its grant of summary judgment and
may affirm the district court's summary judgment on any ground raised below
and supported by the record.” Boyett v. Redland Ins. Co., 

, 606–07
(5th Cir. 2014) (internal quotation marks omitted).




       1As the district court aptly noted, discrimination claims brought under Section 1981
and the Texas Labor Code are evaluated under the same analytical framework as Title VII
claims. Black v. Pan Am Labs., L.L.C., 

, 259 (5th Cir. 2011); Jackson v. Watkins,

, 466 (5th Cir. 2010). Thus, our discussion of Jackson’s Title VII and ADEA
claims, which follows, applies equally to his Section 1981 claims and his Texas Labor Code
claims.
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                                 No. 13-20575
   B. Race Discrimination Claims
      Jackson claims that Honeywell discriminated against him because of his
race in violation of Title VII, Section 1981 and the Texas Labor Code.
Specifically, Jackson contends: (1) Ngo asked Jackson to perform software
coding because of his race, (2) Ngo failed to give Jackson recognition or
accolades for his achievements because of his race, (3) Jackson was assigned to
work on two tasks over a four month period because of his race, (4) Nguyen
required Jackson to perform a public presentation of the LDRA tool because of
his race, (5) Honeywell paid Jackson less than other employees because of his
race, and (6) Jackson was rejected for the position of Orion Test Program
Manager (“OTPM”) because of his race.
      Because Jackson has not offered any direct evidence, we apply the
modified McDonnell Douglas burden-shifting standard, as the district court
did. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 

, 411
(5th Cir. 2007).     Jackson must first demonstrate a prima facie case of
discrimination; he must show that he: (1) is a member of a protected class,
(2) was qualified for the position at issue, (3) was discharged or suffered some
adverse employment action by the employer, and (4) was replaced by someone
outside his protected group or was treated less favorably than other similarly
situated employees outside the protected group. McCoy v. City of Shreveport,

, 556 (5th Cir. 2007). If Jackson can make out a prima facie case,
the “burden then shifts to the employer to articulate a legitimate,
nondiscriminatory . . . reason for its employment action.” 

is
one of production, not persuasion and does not involve a credibility
assessment. 

employer states its reason, the burden shifts back to
the plaintiff; the plaintiff must show either that the employer’s reason is false
and merely pretext for discrimination or that while the employer’s reason is


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                                  No. 13-20575
true, it is only one of the reasons for its conduct, and another motivating factor
is the plaintiff’s protected characteristic. 

.
      As to the first four claims of race discrimination, we must determine
whether Jackson has created a genuine, material fact issue that he suffered an
adverse employment action. Adverse employment actions include only
ultimate employment decisions such as hiring, granting leave, discharging,
promoting, or compensating. See 

. An employment
action that has a “mere tangential effect on a possible ultimate employment
decision” does not rise to the level of an adverse employment action. Banks v.
E. Baton Rouge Parish Sch. Bd., 

, 575 (5th Cir. 2003).
      Beginning first with Jackson’s claim that Ngo asked him to perform
software coding because of his race, Jackson argues that requiring him to write
code without a license had an adverse effect on his employment because he was
under a PIP, which ultimately led to his termination. As to his second claim,
that Ngo discriminatorily failed to give Jackson recognition or accolades for his
achievements, Jackson argues that this was a denial of compensation and thus
an adverse employment action.       Next, as to Jackson’s claim that he was
assigned to work on two tasks over a four month period because of his race, he
argues this was materially adverse to his complying with the terms of his PIP
and ultimately led to his termination. Finally, as to his claim that Nguyen
required Jackson to perform a public presentation of the LDRA tool because of
his race, Jackson claims that his failure to successfully conduct the LDRA
presentation was materially adverse to his complying with the terms of his PIP
and led to his termination.      Contrary to Jackson’s claims, however, less
favorable work assignments and denial of performance awards do not
constitute adverse employment actions. Pegram v. Honeywell, Inc., 

, 282 (5th Cir. 2004). As a matter of law, whether considered individually


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                                 No. 13-20575
or together, none of these complaints were actionable adverse employment
actions.
      We next turn to Jackson’s claim that he was paid less than other
employees because of his race. In order to establish a prima facie case, Jackson
must show that his circumstances were “nearly identical” to those of a
better-paid employee. Taylor v. UPS, Inc., 

, 523 (5th Cir. 2008).
Jackson has failed to show that the two white employees he alleges were
better-paid and more favorably treated are similarly situated.       Honeywell
produced evidence that Jackson’s pay was determined by a variety of factors
including his hire date, initial salary, experience and performance. The record
shows that these two white employees were hired by Honeywell at different
times, held different positions, and worked under different supervisors; there
is no evidence that Jackson and these white employees had similar job duties,
disciplinary histories, or levels of experience. Consequently, Jackson failed to
establish a prima facie case of racially motivated disparate pay.
      Finally, we turn to Jackson’s claim that he was not selected for the
OTPM position because of his race. Jackson established a prima facie case
because Honeywell’s refusal to hire Jackson for a position is an “ultimate
employment decision,” shifting the burden to Honeywell. Honeywell offered
proof, however, that the position was rescinded for budgetary reasons. We
have held that an elimination of a position is a legitimate, non-discriminatory
reason for an adverse employment action. Hanchey v. Enega Co., 

,
98 (5th Cir. 1995). This shifts the burden back to Jackson to “present[] a
genuine issue of fact as to whether the reasons articulated by [Honeywell] . . .
were pretextual.” Amburgey v. Corhart Refractories Corp., 

, 813
(5th Cir. 1991).     Jackson may prove Honeywell’s articulated reasons are
pretext “in two ways, ‘either [1] directly by persuading the court that a
discriminatory reason more likely motivated the employer or [2] indirectly by
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                                 No. 13-20575
showing that the employer’s proffered explanation is unworthy of credence.’”

and citations omitted). “In the context of a summary
judgment proceeding, the question is not whether the plaintiff proves pretext,
but rather whether the plaintiff raises a genuine issue of fact regarding
pretext.” 

and citations omitted).
      Jackson argues in his Motion for Reconsideration that even though the
OTPM position was purportedly rescinded because of budgetary reasons,
Honeywell placed another employee, Jack Stanley (“Stanley”), in the position
to assume the same job duties and responsibilities, albeit with a different job
title of “Test Manager/Lead.” Jackson argues that because Honeywell assigned
these responsibilities to another person, Honeywell’s proffered reason is false.
Jackson’s argument addresses Honeywell’s decision not to give him these
additional responsibilities, but it does not address the ultimate issue—that
Honeywell did not create the OTPM position at all, possibly due to budget
reasons, but instead increased the responsibilities of an employee other than
Jackson. Jackson does not argue that Stanley received a pay increase or
promotion along with these additional duties, which would serve to create a
genuine issue of material fact as to whether the OTPM position was eliminated
due to budgetary reasons, as Honeywell argues, or to avoid promoting Jackson,
as Jackson argues. Jackson has not created a genuine, material fact issue that
Honeywell’s proffered reason is pretextual.
      For these reasons, summary judgment for Honeywell is proper on
Jackson’s race discrimination claims.
   C. Retaliation Claim
      Jackson asserts that Honeywell retaliated against him after he
complained in 2009 that his supervisor, Ngo, treated him unfairly in violation
of Title VII, Section 1981, and the Texas Labor Code. Jackson’s retaliation


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                                      No. 13-20575
claim is based not only on his termination, but also on Honeywell’s decision to
place him on an LOE and two PIPs.
       As we have stated, where there is no evidence of direct discrimination,
we analyze Title VII claims under the McDonnell Douglas standard. LeMaire
v. Louisiana, 

, 388 (5th Cir. 2007). Because Jackson has offered
no evidence of direct discrimination, he must establish a prima facie case.
Turner v. Baylor Richardson Med. Ctr., 

, 345 (5th Cir. 2007).
Jackson must show: (1) he engaged in a protected activity, (2) an adverse
employment action occurred, and (3) there was a causal link between the
protected activity and the adverse employment action. Hernandez v. Yellow
Transp., Inc., 

, 655 (5th Cir. 2012).
       Jackson’s argument that being placed on an LOE and two PIPs
amounted to retaliation fails because written warnings and unfavorable
performance reviews are not adverse employment actions where colorable
grounds exist for disciplinary action or where the employee continues to engage
in protected activity.       See Burlington N. & Santa Fe Ry. Co. v. White,

, 68, 

, 2415 (2006). 2 The record demonstrates
colorable grounds for the LOE and PIP; Honeywell began documenting
Jackson’s performance deficiencies in 2005 and continued to note points of poor
performance in 2006 and 2008, before Jackson complained of discriminatory
treatment from his supervisor. Accordingly, Jackson’s performance reviews
and other disciplinary measures did not constitute retaliation.
       Jackson’s claim of retaliation based on termination also fails because he
cannot establish a causal nexus between the termination and the protected



       2We made similar findings in DeHart v. Baker Hughes Oilfield Operations, Inc., 214 F.
App’x 437, 442 (5th Cir. 2007), and Love v. Motiva Enters. LLC, 349 F. App’x 900, 904-05 (5th
Cir. 2009). DeHart and Love were unpublished decisions and are therefore not binding, but
are persuasive.
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                                  No. 13-20575
activity—a necessary element of the prima facie case. Jackson has not offered
evidence that his supervisor at the time he was terminated, Nguyen, knew of
Jackson’s prior complaints about Ngo, which were his protected activity, the
previous year.    See 

(noting the causal nexus
inquiry focuses on the actions of “the final decisionmaker”); Manning v.
Chevron Chem. Co. LLC, 

, 883 & n.6 (5th Cir. 2003) (a plaintiff
must first “demonstrate that the employer knew about the employee’s
protected activity”).   Finally, even if Jackson could produce evidence that
ultimate decisionmakers knew about his protected activity, his claim suffers
because of the time gap between his protected activity and his termination. As
we held in McCoy, “[c]lose timing between an employee’s protected activity and
an adverse action against the employee may provide the causal connection
need to make out a prima facie case of retaliation.” 

n.28. We have found a five month period between the protected activity and
the adverse employment action insufficient to establish a causal link. See
Raags v. Miss. Power & Light Co., 

, 471-72 (5th Cir. 2002). Here,
there was a period of fifteen months between Jackson’s protected activity and
his termination, and seven months between his EEOC filing and his
termination. Accordingly, Jackson has not established a causal nexus between
his termination and protected activity.
      For these reasons, we conclude that Jackson has not established a prima
facie case of retaliation.
   D. Hostile Work Environment Claim – on the Basis of Race
      Jackson claims he was subjected to a hostile work environment on the
basis of his race. Specifically, he alleges his supervisor, Ngo, commented that
Honeywell would not hire an engineer from Prairie View A&M because it was
a “black school” and did not produce engineers with the skills Honeywell
needed.   He also claims that Ngo said dealing with African-Americans is
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                                No. 13-20575
“difficult” because they “rip you off” and that he used a racial slur twice.
Jackson alleges another Honeywell employee, Michael Berning (“Berning”),
told him “no one cares about your diversity crap” during a discussion about a
“Diversity Day” event at Honeywell.
      In order to establish his hostile work environment claim, Jackson must
prove that his environment at Honeywell was permeated with discriminatory
intimidation, ridicule, and insult so severe or pervasive as to alter the
conditions of employment and create a hostile or abusive working
environment. Harris v. Forklift Sys., Inc., 

, 21-22, 

,
370-71 (1993); EEOC v. Boh Bros. Cost. Co., L.L.C., 

, 453
(5th Cir. 2013) (en banc).
      Where a harassment claim arises out of a supervisor’s conduct,
      there are four elements of a hostile working environment claim:
      (1) that the employee belongs to a protected class; (2) that the
      employee was subject to unwelcome [] harassment; (3) that the
      harassment was based on [a protected characteristics]; and (4) that
      the harassment complained of affected a term, condition, or
      privilege of employment. . . . We use an objective “reasonable
      person” standard to evaluate severity and pervasiveness.
      Ultimately, whether an environment is hostile or abusive depends
      on the totality of the circumstances.

Boh 

. Workplace conduct is not measured in isolation;
instead, we look to: (1) the frequency of the discriminatory conduct; (2) the
severity; (3) whether it is physically threatening or humiliating as opposed to
mere offensive utterance; (4) whether it unreasonably interferes with an
employee’s work performance; and (5) whether the workplace undermines the
plaintiff’s workplace competence.     Hockman v. Westward Commc’ns, LLC,

, 325-26 (5th Cir. 2004).
      Here, the comments, while they may be offensive, are not severe or
pervasive enough to have created a hostile work environment. Jackson alleged

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                                  No. 13-20575
Ngo made offensive comments twice over a period of two years, and the alleged
comment from Berning came a year later. The record also indicates that these
did not unreasonably interfere with Jackson’s work performance or his
competence. When asked if from his perspective he was always fully capable
of performing his duties Jackson answered, “Yes, I loved my work.” Although
Jackson cites that he received medical treatment for stress and mental
anguish, the evidence does not support this contention. When asked about his
mental anguish, Jackson testified he had “a lot of loss of sleeping . . . blood
pressure off the charts . . . it was torture.” However, Jackson also testified that
he had been on blood pressure medication since 2001—years before any of the
alleged comments were uttered. Jackson has not created a genuine, material
fact issue concerning a racially hostile work environment.
   E. Hostile Work Environment Claim – on the Basis of Age
      Jackson claims he was subjected to a hostile work environment based on
his age, pointing to several comments that were allegedly made between 2007
and 2009. He contends Berning commented three to four times that Jackson
“should retire” so that Honeywell would not have to lay off younger employees.
Jackson also contends that during a discussion regarding the unlikelihood of
successfully completing his PIP, Blumentritt and Kellie Watts (“Watts”)
suggested Jackson should voluntarily retire and accept a severance package.
      A plaintiff advances a claim for hostile work environment based on age
discrimination by establishing that: (1) he was over the age of 40; (2) he was
subjected to harassment, either through words or actions, based on age; (3) the
nature of the harassment was such that it created an objectively intimidating,
hostile, or offensive work environment; and (4) there exists some basis for
liability on the part of the employer.         Dediol v. Best Chevrolet, Inc.,

, 441 (5th Cir. 2011). As we have stated, Jackson must show the
workplace is permeated with discriminatory intimidation, ridicule and insult
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                                 No. 13-20575
which is so severe or pervasive that it alters the conditions of employment and
creates a hostile or abusive working environment. 

totality of
the circumstances, we look to: (1) the frequency of the discriminatory conduct,
(2) the severity, (3) whether it is physically threatening or humiliating as
opposed to mere offensive utterance, (4) and whether it unreasonably
interferes with an employee’s work performance. 

offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and
conditions of employment.” Faragher v. City of Boca Raton, 

, 788,

, 2283 (1998). The comments alleged by Jackson are not severe
or pervasive enough to have created a hostile working environment; instead,
they were isolated and did not affect the terms and conditions of his
employment. As to comments allegedly made by Berning, Honeywell aptly
notes that while the alleged comment may have been offensive, Berning was
not Jackson’s manager and was not involved in any employment decisions
involving Jackson.
      Further, Jackson has not met his burden of establishing that his work
environment was either objectively or subjectively hostile. See Reed. v. Neopost
USA, Inc., 

, 443 (5th Cir. 2012) (holding that incidental or
occasional age-based comments, including references to an employee like “old
man” and “old fart” were insufficient to support an age-based hostile work
environment claim). Jackson cites the same portion of the record as before to
show the stress and mental anguish he experienced because of these alleged
comments about his age, but for the reasons discussed above, we do not find
his argument persuasive. In sum, the claim of a hostile environment based on
Jackson’s age lacks genuine, material fact issues.
      We agree with the district court that Jackson has not shown a hostile
work environment because of age that is actionable under law.
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                                  No. 13-20575
   F. Age Discrimination Claim
      Jackson alleges he was discriminated against based on his age when he
was assigned to work under a younger employee, who he contends is less
experienced than him but who, according to Nguyen, “was going to be around
for the 20-year duration of the project.” Because Jackson has offered no direct
evidence of age discrimination, we again apply the McDonnell Douglas burden-
shifting analysis. West v. Nabors Drilling USA, Inc., 

, 384
(5th Cir. 2003). Jackson must first establish a prima facie case by showing:
(1) he is a protected class, (2) he was qualified for the position, (3) he suffered
an adverse employment decision, and (4) he was replaced by someone younger
or treated less favorably than similarly situated younger employees. Smith v.
City of Jackson, 

, 196 (5th Cir. 2003).
      Honeywell argues that Jackson failed to establish a prima facie case of
age discrimination because neither Jackson’s assignment to work under a
younger employee nor Nguyen’s alleged failure to select Jackson to the lead
position constitute adverse employment actions because the lead role is a
project assignment rather than a position or a promotional opportunity. In
Felton v. Polles, we remarked that “the complained-of conduct must rise to the
level of an ‘ultimate employment decision’” and “Title VII was designed to
address ultimate employment decisions . . . [which] include acts such as hiring,
granting leave, discharging, promoting, and compensating.” 

, 486
(5th Cir. 2002) (internal quotations and citations omitted), abrogated on other
grounds by 

, 126 S. Ct. at 2405. Jackson has not
shown that he was denied a promotion because of his age, but only that he was
not given a lead role on a particular project. Accordingly, Jackson has not
established a prima facie case of age discrimination.




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                               No. 13-20575
                            III.   CONCLUSION
     Jackson has not raised genuine issues of material fact necessary to
survive summary judgment on any of his discrimination and retaliation claims.
After reviewing the full record including Jackson’s submissions with his
Rule 59(a) motion, we conclude that summary judgment was properly granted.
The judgment of the district court is AFFIRMED.




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