Luckman v. United Parcel Svc

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 7, 2002
• Docket: 01-11239
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 01-11239 Summary Calendar _______________________

JERRY LUCKMAN, Plaintiff-Appellant,

versus

UNITED PARCEL SERVICE; ET AL,

Defendants,

UNITED PARCEL SERVICE, INC.,

Defendant-Appellee.

_________________________________________________________________

Appeals from the United States District Court for the Northern District of Texas 3:00-CV-0739-G _________________________________________________________________ June 6, 2002

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Jerry Luckman, a black man of Ethopian origin, sued his

employer, United Parcel Service (“UPS”), under Title VII (42 U.S.C.

§ 2000e) and 42 U.S.C. § 1981. Luckman alleges that he was

unlawfully subjected to a hostile work environment, disparate

treatment, and retaliation based on his race and national origin.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The district court granted summary judgment for UPS, and we affirm.

We review a district court’s grant of summary judgment de

novo, applying the same standard set forth in Fed. R. Civ. P.

56(c). Fierros v. Texas Dept. of Health, 274 F.3d 187, 190 (5th

Cir. 2000). “Claims of racial discrimination brought under § 1981

are governed by the same evidentiary framework applicable to claims

of employment discrimination brought under Title VII.” LaPierre v.

Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996). We

turn now to the merits of Luckman’s claims.

First, the district court concluded that Luckman had

failed to create a fact issue as to each element of a hostile work

environment claim: (1) racially discriminatory intimidation,

ridicule and insults that are (2) sufficiently severe or pervasive

that they (3) alter the conditions of employment and (4) create an

abusive working environment. Walker v. Thompson, 214 F.3d 615,

625-26 (5th Cir. 2000). In determining whether a working

environment is abusive, all circumstances must be considered,

including “‘the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or

a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.’” Id. (quoting Harris v.

Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). Furthermore, the

Supreme Court has held that whether a work environment is hostile

is an objective inquiry based on what “ a reasonable person would

find hostile or abusive.” Harris, 510 U.S. at 21. Although he

2 alludes to “repeated actions of humiliation,” Luckman alleges only

that (1) he was suspended with pay while UPS tested his cognitive

ability and communication skills and (2) he was sometimes required

to work alone under what he believed were hazardous conditions.

Clearly, Luckman has fallen short of creating a fact issue on this

claim. No reasonable juror could conclude that these working

conditions, even when viewed in the light most favorable to

Luckman, created an abusive working environment, as that term has

been developed in Supreme Court and Fifth Circuit caselaw.

Second, the district court concluded that Luckman did not

make a prima facie case of disparate treatment because he has not

suffered an adverse employment action. Luckman insists that his

work assignments, written warnings, and denial of an ID constitute

adverse employment actions for the purposes of Title VII liability.

But, even assuming that Luckman’s assignments were more hazardous

than they would have been if two mechanics had been working, he has

failed to show an adverse employment action. Breaux v. Garland,

205 F.3d 150, 157 (5th Cir. 2000)(“‘Adverse employment actions are

discharges, demotions, refusals to hire, refusals to promote, and

reprimands.’”)(quoting Pierce v. Texas Dept. of Criminal Justice,

37 F.3d 1146, 1149 (5th Cir. 1994)).

As Luckman has not suffered an adverse employment action,

we need not address whether he has presented “direct evidence” of

racial animus in the form of a memorandum written by a nurse. As

the Eleventh Circuit has explained, “The plaintiff must show that

3 an adverse employment action was taken against him regardless of

whether he is relying on direct evidence of discrimination or

employing the burden-shifting approach established in McDonnell

Douglas Corp. v. Green, . . . for cases in which only

circumstantial evidence is available.” Hipp v. Liberty Nat. Life

Ins. Co., 252 F.3d 1208, 1231 (11th Cir. 2001).

Third, the district court ruled that UPS is entitled to

summary judgment on Luckman’s claim for retaliation under Title

VII. To demonstrate a claim for retaliation, Luckman would have to

prove that (1) he was engaged in a protected activity, (2) he

suffered an adverse employment action, and (3) a causal connection

existed between the participation in the activity and the adverse

employment action. Walker, 214 F.3d 615, at 628-29. This court

has interpreted “adverse employment action” to refer only to

ultimate employment decisions, such as “hiring, granting leave,

discharging, promoting, and compensating.” Id.; see also Mattern

v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997). The

employment decisions of which Luckman complains are not the kind of

decisions actionable under Title VII or § 1981.

The summary judgment for UPS is therefore AFFIRMED.