IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 98-50967

Summary Calendar

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BOBBY L. GREEN,

Plaintiff-Appellant,

VERSUS

TOGO D. WEST, JR., Secretary of the Army,

Defendant-Appellee.

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Appeal from the United States District Court

for the Western District of Louisiana

(SA-97-CV-1148)

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September 9, 1999

Before SMITH, BARKSDALE, and

PARKER, Circuit Judges.

PER CURIAM:*

Bobby Green sued his employer, the U.S.

Army, claiming racial discrimination, reprisal

(retaliation), and constructive discharge. The

district court granted summary judgment, and

we affirm.

I.

Greenwas working as an Alcohol and Drug

Instructor at the Behavioral Science Division,

Alcohol and Drug Training Branch of the U.S.

ArmyMedicalDepartmentCenter and School.

He asserts that his supervisor, Lieutenant

ColonelRoberto Castorena, issued a “letter of

counseling” against him (purportedly for

“failing to comply with instructions and meet

a suspense”) and engaged in “constant

harassment, intimidation, and discriminatory

actions” against him on account of(1) Green’s

race (black) and (2) the fact that Green had

participated in a group grievance filed by

employees of the ADTB a couple of months

earlier. Green contends that this campaign of

discrimination and retaliation culminated in his

constructive discharge.

Green filed a grievance against Castorena.

Lieutenant Colonel John Jeffries denied the

grievance on the ground that it was untimely

filed, whereupon Green pursued his grievance

to the second and third steps of the grievance

process, asking that the letter be rescinded and

that all alleged reprisal behavior against himbe

stopped. Colonel T.R. Bryne, Dean for the

Academic ofHealthSciences, denied the thirdstep grievance, finding that the letter of

counseling had been appropriately issued.

Green was offered an early retirement

package, which he claims to have accepted

because he “could not tolerate the

discrimination and unfair treatment” he had

been receiving.

 

* 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.
2

II.

A claim of discrimination or reprisal must

include the demonstration of adverse

employment action. Urbano v. Continental

Airlines, Inc., 138 F.3d 204, 206 (5th Cir.)

(discussing elements ofdiscriminationcause of

action), cert. denied, 119 S. Ct. 509 (1998);

Nowlin v. Resolution Trust Corporation,

33 F.3d 498, 507 (5th Cir. 1994) (discussing

elements of reprisal cause of action). As the

district court correctly noted, Green has failed

to make such a demonstration as a matter of

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 theydo 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 isthe letterfor 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 (5thCir. 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

mentioned previously, Green’s

“unsubstantiated assertions are not competent

summary judgment evidence.” Forsythe,

19 F.3d at 1533; see also Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th

Cir. 1996) (en banc).

Because Green failed to establish his prima

facie cases of discrimination and reprisal and

failed to carry his burden on the claim of

constructive discharge, the court properly

granted summary judgment.

AFFIRMED.