* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this o pinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-40948

Summary Calendar

LANEY J. HARRIS,

Pl aintiff-Appellant,

versus

TOGO D. WEST, JR.,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:96-CV-211

April 19, 1999

Before POLITZ, BARKSDALE , and STEWART, Circuit Judges.

PER CURIAM: *

Laney J. Harris appeals the district court’s grant of summary judgment. Our review of the

record leads us to affirm the judgment below.

Factual and Procedural Background

Appellant Laney J. Harris (“Harris”) is a former electronic integrated systems me chanic at

the Red River Army Depot (“RRAD”). In July of 1989, during the course of his employment, Harris

sustained a lower back injury. On January 16, 1990, Harris informed his supervisor that he could no

longer perform the core responsibilities of his position. Specifically, Harris could no longer carry and

manipulate electronic components weighing from 10 pounds to 100 or more pounds. Additionally,1 As an electronic integrated systems mechanic, Harris commanded pay and allowance at WG12. The Electronic Worker position was assigned compensation at WG-8.

2 Issues pertaining to Harris’s assignment to a lower grade are not before this court.

2 Harris was required to stoop and bend in close quarters for extended periods of time.

Upon evaluation at the installation health clinic, Harris was temporarily restricted from heavy

lift ing, bending, climbing and twisting. These temporary restrictions were extended and on May 18,

1990, a physician disqualified Harris from duties as an electronic integrated systems mechanic. Harris

was considered permanently restricted from heavy lift ing, carrying and repeated bendin g. Since

Harris could no longer perform the functions of his position, RRAD temporarily assigned him to the

position of Electronic Worker which commanded a lower pay. Nevertheless, RRAD continued to

compensate him at his higher pay. 1

Harris applied for the position of Electronic Integrated Systems Mechanic Leader after RRAD

announced the opening on December 3, 1990. A review panel considered Harris’s application along

with twenty other applications. The panel did not select Harris for the position which led to Harris

filing a formal administrative equal employment opportunity (“EEO”) complaint alleging race

discrimination on December 3, 1991. The United States Army Civilian Appellate Review Agency

(“USACARA”) conducted a fact finding conference on April 8, 1992 an d fo und no evidence of

discrimination. Harris appealed to the Equal Employment Opportunity Commission (“EEOC”).

Eventually, Harris filed three additional EEO complaints including: (1) discrimination on the

basis of race; (2) reprisal for failure to provide medical documentation; and (3) a detail to a lower

grade. 2 USCARA consolidated the first two EEO complaints, conducted a fact-finding conference

and issued a Report of Investigation finding no discrimination or reprisal.

Harris appealed to the EEOC which addressed the following three issues in its consolidated

decision: (1) discriminati o n based on race and physical disability when assigned to duties

commensurate with WG-08; (2) discrimination based on race and physical disabilit y and reprisal when

Harris’s request for leave without pay was denied; and (3) discrimination based on race when Harris3 This was not the position at issue in the instant appeal.

3 was not rated as one of the best qualified persons for the position of Electronic Integrated Systems

Mechanic Leader. The EEOC conducted a hearing and issued a recommended decision of “no

discrimination” which the RRAD subsequently adopted.

Harris appealed the RRA D’s final decision to the EEOC, Office of Federal Operations

(“EEOC-OFO”). The EEOC-OFO reviewed Harris’s three complaints and found no basis for relief.

His March 21, 1996 request for reconsideration was rejected which led Harris to file his instant

judicial complaint on July 3, 1996. During discovery, Harris was noticed for a deposition yet he failed

to appear. The district court awarded attorneys for West costs in the amount of $753.06 for expenses

related to this deposition.

This appeal is among three others Harris has brought to this court over the past six years.

Harris filed each complaint in the Eastern District of Texas, Texarkana Division. In H arris v. Stone

,

No. 5:92 CV83 a ff’d

, No. 92-5136 (5 th Cir. June 22, 1993), the district court granted defendant’s

motion to dismiss ruling that disclosure of a note from Harris’s physician was in the “performance

of duties” and did not violate the Privacy Act. Approximately two years lat er, t he district court

adjudicated Harris v. Sullivan

, No. 5:94C V58, a ff’d

, No. 97-40798 (5 th Cir. February 11,1998).

Therein, Harris alleged discrimination on the basis of race, color and reprisa l because he was not

selected for either a WL-12 position 3 or a WL-10 position. Harris also complained that he had

received a performance rating that was not “highly successful” and suffered racial threats. Once the

district court denied his motion to proceed in forma pauperis

, Harris paid his filing fees on April 21,

1995 yet he did not serve the defendant until Januar y 21, 1996. The l ower court granted the

defendant’s motion to dismiss for failure to timely and properly serve the defendant.

Harris filed a third complaint, Harris v. West

, No. 5:94CV94, aff’d , No. 97-40799 (5 th Cir.

July 6, 1998), alleging discrimination on the basis of race, color, reprisal and handicap when he was

removed from his position and not provided reasonable accommodations. Harris also alleged that4

the agency failed to provide affirmative action for promotion to WG-12 and amended his complaint

to amplify his claims of reta liat io n and to assert that his fifth amendment rights had been violated.

The district court granted defendant’s motion to dismiss and summary judgment finding that Harris

had failed to establish that he was qualified to hold the dispu t ed WG-12 position with or without

accommodation. Additionally, the district court found that Harris failed to establish that he was the

victim of race or reprisal discrimination and failed to exhaust his administrative remedies. The district

court also found that Harris’s due process rights had not been violated.

Procedurally, this case began when Harris filed his July 3, 1996 pro se comp laint alleging

discrimination on the basis of disabilit y, color, race, and reprisal when he was not rated on of the bestqualified applicants for a wage leader position at the Red River Army Depot. Harris alleged that he

was no t given reasonable accommodations for his disability. Togo D. West, Jr., Secretary of the

Army, moved for dismissal and summary judgme nt which t he district court granted. The district

court held that Harris was bound by res judicata and that Harris was not qualified to perf orm the

dut ies o f wage-leader. According to the district court, Harris failed to contradict the

nondiscriminatory reasons given for his non-selection; the denial of leave w ithout pay status; and

issuance of a memorandum of record related to Harris’s refusal to provide medical documentation.

The district court dismissed the claim for reprisal discrimination and assessed costs for the deposition

at which Harris failed to appear. Harris timely appealed to this court.

Discussion

This Circuit reviews a district court's grant of summary judgment de novo, applying the same

stan dard of review as would the district court. S ee Ellison v. Connor

, 153 F.3d 247, 251 (5th

Cir.1998). Summary judgment evidence is viewed in the light most favorable to the party opposing

the motion. See Eastman Kodak v. Image Technical Services

, 504 U.S. 451, 456- 58, 112 S.Ct. 2072,

119 L.Ed.2d 265 (1992). We review a district court’s decision to award costs pursuant to Fed. R.

Civ. P. 37(d) for abuse of discretion. S ee Coane v. Ferrara Pan Candy Co.

, 898 F.2d 1030 (5th

Cir.1990).4 Implicit ly, Harris attem pts to raise a disparate impact theory of discrimination. We summarily

reject the same because Harris concedes that he did not bring the action in federal court. Consequently, it is not properly before this court for adjudication.

5 On appeal, we must consider the following five issues: (1) the application of the doctrine of

res judicata to Harris’s accommodation claim; (2) the existence, or lack thereof, of a prima facie case

o f discrimination; (3) Harris’s failure to rebut legitimate nondiscriminatory reasons for his

nonselection, receipt of a memorandum of record and a denial of request for leave without pay; (4)

whet her the receipt of a memorandum of record or denial of leave without pay status are adverse

employment actions; and (5) whether the distric t co urt abused its discretion in assessing costs for

Harris’s failure to appear at his deposition. 4 We turn to the merits of the arguments on these issues.

The doctrine of res judicata applies where, as here, a party seeks to litigate the same facts and

claims previously adjudicated in a subsequent litigation. S ee Super Van Inc. v. San Antonio

, 92 F.3d

366, 370 (5th Cir.1996). The test for claim preclusion or res judicata has four components:

(1) The parties are identical or in privity; (2) the judgment in the prior action was rendered by a court

of competent jurisdiction; (3) the prior action was concluded to a final judgment on the merits; and

(4) the same claim or cause of action was involved in both actions. S ee Swate v. Hartwell

, 99 F.3d

1282, 1286 (5th Cir.1996). We find that Harris’s claims regarding failure to acco mmo date his

disabilit y, a bad back, have been resolved in Harris v. West

, No. 5:94CV94, aff’d

, No. 97-40799 (5 th

Cir. July 6,1998). Accordingly, we affirm the judgment of the district court.

One essential component of a successful discrimination claim includes a plaint iff’s

demonstration that he is qualified to perform the essential functions of his job. S ee Davis v. Chevron

,

14 F.3d 1082, 1087 (5 th Cir. 1994). Harris carries the burden of proof on this issue. S ee McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). He contends that he was denied a higher

position on the basis of his race, color, handicap and as reprisal for filing an EEOC complaint yet he

has faile d to demonstrate to the satisfaction of this court that he can fulfill the requisites of the

position. Harris was permanently restricted from lift ing and carrying jobs as well as repeated bending.5 Harris’s brief on appeal is also poorly written.

6 See Harris v. West

, supra. The “physical effort” porti on of the job requires, in part, the same physical

behavior Harris is expressly unable to perform. On the record before us, we cannot find that Harris

was otherwise qualified to fulfill the requirements of this position.

Harris has similarly failed to contradict or rebut the legitimate nondiscriminatory reasons for

his nonselect io n. The panel reviewing the applications for the promotion, including Harris’s

application, conducted a “blind” process in which they did not have a ccess to the nam e or race of

e a ch applicant. The panel constructed a best qualified list based on objective factors such as

experience in leading journeymen. Harris had also submitted a poorly written application which

reflected unfavorably on him . 5 Harris has failed to bring to our attention any information, facts or

evidence to rebut the nondiscriminatory reasons given by his employer for his nonselection.

Similar to his other claims of discrimination, Harris has failed to present a prima facie case of

reprisal. According to Harris, the reprisal or retaliation occurred in the form of denial of leave

without pay status and the issuance of a memorandu m o f reco rd. It is incumbent upon Harris to

demonstrate that the actions on the part of the RRAD amount to an adverse employment action. S ee

Nowlin v. Resolution Trust Corporation

, 33 F.3d 498, 507 (5 th Cir. 1994). Harris must also rebut

the legitimate nondiscriminatory reasons the RRAD propounds.

In Dollis v. Rubin

, 77 F.3d 777, 781-82 (5 th Cir. 1995), this court explained, “Title VII was

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

that arguably might have some tangential effect upon those ultimate decisions.” On the facts before

us, we do not find that an ultimate employment decision was made adverse to Harris. While Harris

was denied leave without pay, he has not alleged that the denial resulted in any loss of pay or benefits.

Moreover, Harris has failed to rebut the legitimate nondiscriminatory reason given by the employer

for the denial. Harris failed to present to his supervisor medical do cumentation or recent medical6 Although Harris’s supervisor asked him to update a ten-month old doctor’s slip, he declined

to do so.

7 information to support his request. 6 We find no discrimination in the denial of leave without pay or

in the memorandum for record memorializing the denial.

Finally, Harris challenges the district court’s award of costs attendant to his failure to appear

at a scheduled deposition. We find no abuse of discretion. Over the past six years, Harris has

frequently called upon the district court to adjudicate matters arising out of his employment at the

RRAD; ye t , Harris’s appreciation of the process must transcend filing complaints which in some

respects are duplicative. Discovery affords, i n t er alia

, the litigants an opportunity to exchange

information, assess the merits of the case, and prepare a case-in-chief or defense. This process

depends upon the cooperati on of the lit ig ant s. Here, counsel made reasonable expenditures in

reliance on Harris’s commitment to attending the deposition. The district court properly assessed

those costs to Harris’s since he failed to attend.

Conclusion

For the reasons assigned, we AFFIRM the judgment of the district court.