## 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)

_________________________ September 9, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM: *

Bobby Gre en 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.

Green was working as an Alcohol and Drug

Instructor at the Behavioral Science Division,

Alcohol and Drug Training Branch of the U.S. Army Medical Department Center and School.

He asserts t hat his supervisor, Lieutenant

Colonel Roberto Castorena, issued a “letter of counseling” against him (purportedly for

“failin g t o 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) a n d (2) the fact that Green had

part icipated in a group grievance filed by

em plo yees 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 Co lo nel John Jeffries denied the grievance on the ground t hat 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process, asking that the letter be rescinded and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 him be stopped. Colonel T.R. Bryne, Dean for the

Academic of Health Sciences, 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 5 TH C IR

. R. 47.5, the court

has determined that this opinion should not be

p ublished and is not precedent except under th e limited circumstances set forth in 5 T H C IR

. R.

47.5.4.2 II.

A claim of dis crimination or reprisal must

include the demo nstration of adverse employm ent acti on. U

rbano v. Continental

Airlines, Inc. , 138 F.3d 204, 206 (5th Cir.) (discussing elements of discrimination cause of action), cert. denied

, 119 S. Ct. 50 9 (1998);

Nowlin v. R esolution Trust Corporation

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

elements of reprisal cause o f action). As the

district court correctly noted, Green has failed

to make such a demonstrat ion as a m atter of

law.

Under this court's precedent, only ultimate employment decisions can qualify as adverse

e m ployment actions. S ee 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 ad verse employment actions. S ee Mattern v.
Eastm an 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 adver s e employment a ction under D ollis or Mattern

. Green’s unsubstantiated, conclusional allegations of “ h arassment, intimidation, and discriminatory actions” likewi se do not constitute ultimate employment decisions and

are not competent summary judgment

evidence. S ee 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 plaint iff alleging constructive discharge must pro d uce facts tending to demon strate worki ng conditio ns “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 lett er of counseling and his

unsubstantiated assertions of discrimi nati on generally. The letter most certainly does not

rise t o the level described in B arrow

, and, as

m entioned previously, Green’s

“unsubstantiated assertions are not competent summary judgme nt evidence.” F orsythe,

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 properl y granted summary judgment.

AFFIRMED.