IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60203
Summary Calendar
BRENDA J. HAYGOOD,
Plaintiff-Appellant,
versus
F. WHITTEN PETERS, SECRETARY, DEPARTMENT OF THE AIR FORCE,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:00-CV-299-GU
October 16, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant Brenda Haygood appeals the district court’s grant of
Appellee’s motion for summary judgment on her employment
discrimination claims, on the basis that, inter alia, the district
court incorrectly concluded that her poor performance evaluation
was not an actionable employment decision. Since 1975, Haygood, an
African-American, has been employed by the Air Force as a GS-05
*
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this opinion should not be published and is not precedent except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.
Supply Technician. The employment action complained of is a “fully
successful” evaluation given her by her supervisor for the twelve-
month period ended March 31, 1998. Appellant asserts that two
white employees, Drish and Frederick, received “excellent” ratings
for the same period, even though “they performed less work and
inferior work in terms of its quality.” She alleges that the poor
rating was due either to racial animus or in retaliation for an EEO
complaint she had filed based on a “fully successful” rating she
had received for the period ended March 31, 1997.
The district court found her poor performance evaluation did
not constitute an “ultimate employment action.”1 We find no fault
in the district court’s conclusion. Appellant acknowledges that we
have excluded poor performance evaluations from the purview of
actionable adverse employment decisions,2 but urges that her
evaluation did constitute an ultimate employment action because it
affected her bonus compensation.3 In response to the motion for
1
Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.
1997) (“‘Ultimate employment decisions’ include acts ‘such as
hiring, granting leave, discharging, promoting, and
compensating.’”).
2
Id. at 708.
3
We have previously held that denial of a pay increase is an
“ultimate employment action.” Fierros v. Tex. Dep’t of Health, 274
F.3d 187, 194 (5th Cir. 2001).
2
summary judgment, Appellant provided testimony that, in her
experience, all employees rated “excellent” receive a 1% bonus,
while no employees rated “fully successful” are eligible for such
compensation. However, the district court concluded this to be
incompetent summary judgment evidence supported only by Appellant’s
conclusory assertions4 and contradicted by the Air Force policy
manual, which specifically provides that an employee’s rating is
not determinative of such awards. The written policy states that
an “award recognizing high levels of performance may be recommended
at the end of the appraisal period in conjunction with the annual
performance rating .... Awards are not given automatically.
Justification for an award is submitted in AF Form 860A, Part C
.... The justification will address accomplishments in the
employee’s position.” Thus, the district court found that,
although the policy manual reveals that performance ratings are
taken into account when determining distribution of merit-based
bonuses, it does not explicitly tie the compensation to an
“excellent” performance rating.
As we have explained, a poor performance evaluation,
reprimand, or other such action that has a “mere tangential effect
on a possible future ultimate employment decision” is not
4
“[C]onclusory allegations, speculation, and unsubstantiated
assertions are inadequate to satisfy the nonmovant’s burden.”
Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th Cir.
1996).
3
actionable.5 Here, Appellant’s poor performance evaluation,
according to Air Force policy, could have had at most a tangential
effect on possible bonus compensation. Therefore, the district
court correctly held that the performance review did not constitute
a legally cognizable adverse employment action.6
AFFIRMED.
5
Mattern, 104 F.3d at 708.
6
Appellant also suggests that she was denied a promotion on
the basis of her “fully successful” review. However, she cites to
no evidence supporting this allegation other than the fact that, at
the time she applied for the promotion in June 1998, her most
recent performance evaluation rated her “fully successful.”
4