*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 circumstancesset forth in 5TH CIR R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60175

Summary Calendar

GEORGE ODUM,

Plaintiff-Appellant,

versus

BEVERLY ENTERPRISES MISSISSIPPI, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:96CV382-D-D

November 24, 1998

Before KING, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

George Odum, an African-American Certified Nurse Assistant (“CNA”) resigned his

employment at Lee Manor, a Tupelo, Mississippi nursing home operated by Beverly Enterprises

Mississippi, Inc. in August 1996. He had been an employee since April 1994. Odum brought a timely

action in the United States District Court for the Northern District of Mississippi alleging violations

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (‘Title VII).

Specifically, Odum complained that he was constructively discharged and subject to a racially hostile

work environment. Odum also brought a claim under Mississippi state law for intentional infliction

of emotional distress.

On February 19, 1998 the district court issued a memorandum opinion and order granting
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summary judgment in favor of Beverly Enterprises of Mississippi, Inc. The district court held that

Odum failed to raise a genuine issue as to a material fact regarding the existence of an ultimate

employment decision. Odum v. Beverly Enterprises Mississippi, Inc., Memorandum Opinion, p. 5,

(February 19, 1998)(citing our decision in Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995)(“Title

VII was designed to address ultimate employment decisions, not to address every decision made by

employers that arguably have some tangential effect upon those ultimate decisions.”)(internal citations

omitted)). The district court recognized that constructive discharge may constitute an ultimate

employment decision but found that Odumhad failed to offer evidence upon which a reasonable juror

could find that he was compelled to resign his position. Nevertheless, the district court evaluated

the substance ofthe instances Odumthought gave credence to his claimof constructive discharge and

found that those instances failed to establish racial animus or an impermissible agenda. Id. Next,

the district court found that Odum had presented insufficient evidence to support his claim that he

was subjected to a hostile work environment. Finally, the district court found that Odum did not

articulate sufficient evidence to support a claim for intentional infliction of emotional distress. 

We review the district court’s grant of summary judgment de novo. Guillory v. Domtar

Industries, Inc., 95 F.3d 1320, 1326 (5th Cir. 1996). This review requires the same analysis

employed by the district court. Id. (citing Turnage v. General Elec. Co. 953 F.2d 206, 212 (5th Cir.

1992)). Summary judgment is appropriate when “the pleadings, depositions, answers to

interrogatories, and admissions on file along with the affidavits filed in support of the motion, if any,

indicate that there is no genuine issue of material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56.; see also, Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). The essence of our review rests on “whether the evidence presents a sufficient

disagreement to require submission to the jury or whether it is so one-sided that one party must

prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

At the time the district court rendered itsjudgment, the Supreme Court had not handed down

its decisions in Faragher v. City of Boca Raton, __U.S.__, 118 S.Ct. 2275 (1998) or Burlington
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Industries, Inc. v. Ellereth, __U.S.__, 118 S.Ct 2257 (1998) which this court has held applies to

claimsfor racial discrimination under Title VII. See Deffenbaugh-Williams v. Wal-Mart Stores, Inc.,

__F.3d__, 1998 WL 654810, *12 (5th Cir. 1998). These cases articulated the rule as follows:

An employer issubject to vicariousliability to a victimized employee for an actionable hostile

environment created by a supervisor with immediate (or successively higher) authority over

the employee. When no tangible employment action is taken, a defending employer may raise

an affirmative defense to liability or damages, subject to proof by a preponderance of the

evidence....No affirmative defense is available, however, when the supervisor’s harassment

culminates in a tangible employment action, such as discharge, demotion, or undesirable

reassignment.

Farragher, 118 S.Ct at 2292-93; Burlington, 118 S.Ct. at 2270. Here, the record is complete enough

for us to review Odum’s claim under both the “tangible employment action” test and the “ultimate

employment decision” test the district court applied. We leave for another day the determination of

where, if at all, these testsintersect. We have reviewed the law, briefs, and the record and are unable

to find either a “tangible employment action” or an “ultimate employment decision”. 

Beverly Enterprises did not discharge, demote or reassign Odum to an undesirable position.

Consequently, we cannot find a tangible employment action. We reject Odum’s claim for

constructive discharge because facts not in dispute reveal that Odum had received only one

disciplinary warning or filing. He would not have been subject to discharge until he had received at

least three additional disciplinary warnings or filings.

Our case law has illuminated the meaning of “ultimate employment decision” which includes

hiring, granting leave, discharging, promoting or compensating. See Dollis at 781-82 (5th Cir. 1995).

It does not include such actions as disciplinary filings, supervisor’sreprimands, poor performance by

the employee or anything which has the potential to jeopardize employment in the future. Mattern

v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997). Under the facts of this case, nothing in

our case law warrants redress. Overall, we agree with the district court and cannot find either a

tangible employment action or ultimate employment decision. 

Next, we turn our attention to Odum’s claim of constructive discharge. It is well established

that a plaintiff must establish that the working conditions were so intolerable that a reasonable
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employee would feel compelled to resign. Faruki v. Parsons S.L.P., Inc., 123 F.3d 315, 319 (5th Cir.

1997). Depending on the facts of the case, badgering, harassment, or humiliation by the employers

calculated to encourage the employee’s resignation can result in constructive discharge. See,

Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 (5th Cir. 1994). The district court properly

found that a claim for constructive discharge would satisfy the requirement of an ultimate

employment decision. See Landgraf v. USI Film Products, 968 F.2d 427, 431(5th Cir. 1992). 

We have looked at the evidence in this case in the light most favorable to Odum, and conclude

that there is no indication that Beverly Enterprises acted with the intention offorcing Odum to resign

or that Odum’s resignation was a foreseeable consequence of Beverly Enterprises’ actions. While

there is evidence that Odum was referred to in a pejorative racial term, we hold that there was

insufficient evidence to establish that a reasonable person would find the working conditions at

BeverlyEnterprisesintolerable. We agree with the district court and cannot find any merit in Odum’s

constructive discharge claim.

We extend our analysis to Odum’s hostile work environment claim. We cannot find under

the facts ofthis case that Odumhas a credible hostile work environment claimbecause we cannot find

discriminatory conduct severe or pervasive enough to create such an environment. Accordingly, we

affirm the judgment of the district court.

Our review of Mississippi state law results in the same conclusion reached by the district

court. As the Mississippi Supreme Court held in Wong v. Stripling, 700 So.2d 296, 306 (Miss.

1997), liability does not extend to mere insults, indignities, threats, annoyances, petty oppression or

other trivialities. We are mindful of Odum’s professed medical condition; nevertheless, we cannot

find that he has an actionable claim under Mississippi law. Therefore, we affirm the judgment of the

district court.

AFFIRMED.
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