United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 7, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-51318
Summary Calendar
JAMES H BELCHER
Plaintiff - Appellant
v.
JAMES D ROCHE, Secretary of the U S Air Force
Defendant - Appellee
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Appeal from the United States District Court
for the Western District of Texas
SA-00-CA-1052-OG
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
The plaintiff, James Belcher, appeals the grant of summary
judgment in favor of the defendant, the Secretary of the United
States Air Force (“Air Force”), and final judgment of dismissal,
in which the district court dismissed all nine of the Belcher’s
civil rights claims with prejudice. Belcher also appeals the
district court’s order denying his motions to compel documents.
On September 21, 2000, Belcher brought suit, pro se, raising
nine claims of unlawful discrimination against the Air Force.
*
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this opinion should not be published and is not precedent except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.
No.
-2-
The facts underlying these claims arose in connection with
Belcher’s civilian employment as a GS-6 medical technician at
Armstrong Drug Testing Laboratory on Brooks Air Force Base in San
Antonio, Texas, from sometime in 1996 until his termination on
October 18, 1997. Specifically, in his complaint, Belcher
contends that the following acts by the Air Force were the result
of race discrimination and age discrimination: (1) he was not
selected for a promotion on April 12, 1996; (2) he received a
“decertification” on June 27, 1996;** (3) he receive an annual
performance rating of “excellent” rather than “superior” on
August 15, 1996; (4) he received a second “decertification” on
November 7, 1996; (5) he received a third “decertification” on
February 14, 1997; (6) he received an annual performance rating
of “unacceptable” on April 2, 1997; (7) the Air Force issued a
“performance improvement period” (“PIP”) on April 2, 1997; (8)
the Air Force placed two negative memoranda regarding his job
performance in his personnel file on July 28 and August 8, 1997;
and (9) he was involuntarily removed from federal service
employment on October 17, 1997.
Upon review of the district court’s thorough twenty-two page
opinion, we agree with the district court that the lion’s share
of Belcher’s claims are not actionable “adverse employment
actions” under Title VII of the Civil Rights Act of 1964 and the
**
Air Force regulations require technicians to be certified
in order to perform extraction and instrumental analysis
procedures. A decertification may result, as in this case, from
tube swaps - causing tubes containing laboratory specimens
awaiting testing to be out of order or causing the contents of
these tubes to be transferred into another sample.
No.
-3-
Age Discrimination in Employment Act. Specifically, all but two
of Belcher’s claims are inactionable because they are
“interlocutory or mediate” decisions that might lead to ultimate
decisions rather than “ultimate employment decisions,” such as
hiring granting leave, discharging, promoting or compensating.
Watts v. Kroger Co., 170 F.3d 505, 511-12 (5th Cir. 1999).
As to Belcher’s remaining two claims - his failure to
promote claim and his wrongful termination claim - Belcher has
simply failed to proffer any competent summary judgment evidence
demonstrating a genuine issue of material fact regarding whether
the Air Force’s decisions were motivated by discrimination. See
Deines v. Tex. Dept. Of Protective and Regulatory Serv., 164 F.3d
277, 281 (5th Cir. 1999). To the contrary, the undisputed record
reveals that Belcher was terminated only after being decertified
on three separate occassions within a one-year period and only
after being given four separate opportunities to gain re-
certification, none of which was successful.
We further find that the district court did not abuse its
discretion in denying Belcher’s motions to compel evidence. On
April 17, 2001, Belcher submitted a document production request
with eleven separate production items to the Air Force, to which
the Air Force timely responded on June 4, 2001. Consistent with
Belcher’s request, the Air Force identified 450 pages of
responsive documents which had also been produced in response to
similar discovery requests during administrative proceedings.
The Air Force also certified that two separate searches for
responsive documents (totaling over thirty hours of search time)
No.
-4-
had been made. Before the Air Force’s deadline to respond to the
discovery requests had expired, on May 21, 2001, Belcher
submitted (but did not file) a motion to compel documents with
the district court. This motion was denied by the district court
on June 8, 2001. On June 27, 2001, Belcher filed a renewed
motion to compel, contending that the Air Force had destroyed
evidence. This motion was also denied by the district court. As
the Air Force has consistently supplied Belcher with
documentation throughout the long course of this litigation -
which has included review by two separate EEOC administrative
judges, the EEOC’s office of federal operations, the merit
systems protection board and the district court, we are not
persuaded by Belcher that the district court abused its
discretion in denying his motions to compel here.
We AFFIRM.