UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-11239
Summary Calendar
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JERRY LUCKMAN,
Plaintiff-Appellant,
versus
UNITED PARCEL SERVICE; ET AL,
Defendants,
UNITED PARCEL SERVICE, INC.,
Defendant-Appellee.
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Appeals from the United States District Court
for the Northern District of Texas
3:00-CV-0739-G
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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should not be published and is not precedent except under the limited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
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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
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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.
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