Robison v. Texas Department of Criminal Justice , 94 F. App'x 225 ( 2004 )

United States Court of Appeals
Fifth Circuit
FILED
April 9, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_____________________ Clerk
No. 03-10924
Summary Calendar
_____________________
DAVID ROBISON,
Plaintiff/Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendant/Appellee.
________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Dallas Division
District Court Cause No. 02-CV-1540-L
_________________________________________________________________
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1
PRADO, Circuit Judge.
This appeal arises from a Title VII employment retaliation
lawsuit. In his complaint, Appellant David Robison (Robison)
asserted that his employer, Appellee Texas Department of Criminal
Justice (TDCJ), retaliated against him because he testified on
behalf of female co-workers about allegations of sexual
harassment and because he talked to the media about allegations
of misconduct by TDCJ personnel. In response to Robison’s
1
Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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.
1
complaint, TDCJ moved for summary judgment on grounds that no
evidence existed of adverse employment action. After considering
the motion, the district court determined that Robison failed to
present evidence that raised a genuine issue of material fact
about whether TDCJ took adverse employment action, granted TDCJ’s
motion, and entered summary judgment in favor of TDCJ. Robison
challenges the summary judgment in this appeal.
Standard of Review
This court reviews a district court’s summary judgment
decision de novo applying the same standard as the district
court.2 Summary judgment is appropriate when the evidence shows
no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.3 Consequently, this
court will uphold a summary judgment if there is no genuine issue
of material fact.
In deciding whether a question of material fact exists, a
court must view all evidence in the light most favorable to the
nonmoving party.4 A fact is material if the evidence is such
that a reasonable party could return a verdict in favor of the
2
See Fabela v. Socorro ISD, 329 F.3d 409, 414 (5th Cir.
2003).
3
See FED. R. CIV. P. 56(c).
4
See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.
574, 587 (1986).
2
nonmoving party.5 Once the moving party has made an initial
showing that there is no evidence to support the nonmoving
party’s case, the party opposing the motion must come forward
with competent summary judgment evidence of the existence of a
genuine fact issue.6 Mere conclusory allegations are not
competent summary judgment evidence, and thus are insufficient to
survive a motion for summary judgment.7 Unsubstantiated
assertions, improbable inferences, and unsupported speculation
are not competent summary judgment evidence.8
Whether Summary Judgment Was Appropriate
On appeal, Robison maintains the district court erred in
granting TDCJ’s motion for summary judgment. Specifically,
Robison complains that TDCJ’s summary judgment evidence did not
cover the entire time frame upon which his lawsuit is based,
TDCJ’s evidence constituted hearsay, and TDCJ’s evidence reflects
a question of fact about whether he experienced retaliation.
To prove his retaliation claim, Robison was required to
prove that: (1) he engaged in activity protected by Title VII,
(2) TDCJ took adverse employment action against him, and (3) a
5
See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
6
See Matsushita, 475 U.S. at 586.
7
See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).
8
See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
3
causal connection existed between the protected activity and the
adverse employment action.9 Adverse employment actions include
“only ultimate employment decisions . . . such as hiring,
granting leave, discharging, promoting, and compensating. An
employer's action does not rise to the level of an adverse
employment action when it fails to have more than mere tangential
effect on a possible future ultimate employment decision.”10
In its motion for summary judgment, TDCJ maintained no
evidence existed of adverse employment action. In support of
this argument, TDCJ submitted a TDCJ report of an internal
investigation. The report indicates TDCJ initiated an
investigation in response to Robison’s complaint that he was
being harassed and retaliated against for being out-spoken. The
report addresses two disciplinary cases involving Robison.
In one action, Robison was charged with substandard duty
performance for failing to contact a particular parolee. The
report indicates that it was determined during the resulting
disciplinary hearing that Robison was not assigned to the
parolee’s case. Because insufficient evidence existed of
substandard duty performance, no discipline was imposed.
9
See Thomas v. Tex. Dept. of Crim. J., 220 F.3d 389, 394
(5th Cir. 2000).
10
See Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261
F.3d 512, 518 (5th Cir. 2001) (internal quotations and citations
omitted).
4
The second action addressed by the report related to
statements Robison made to the media about allegations of sexual
harassment and drug use by TDCJ employees. Under Rule #37 of
TDCJ’s General Rules of Conduct and Disciplinary Action
Guidelines for Employees, “employees are prohibited from engaging
in any activity that would have an adverse impact upon the
integrity or productivity of the employee or the agency.”
Although the report indicates an initial decision was made to
discipline Robison, a disciplinary hearing was not held and the
matter was closed without disciplinary action. In further
support of its motion for summary judgment, TDCJ presented a
document that notified Robison of the disposition of the second
action.
Even considered without the hearsay statements Robison
complains about, the report indicates Robison was never fired,
reassigned, denied promotion, suffered a change in benefits, or
disciplined in any that could be construed as adverse employment
action. Even though the report does not cover Robison’s
complaint about being unable to wear sandals without socks—an
event that allegedly occurred after the two disciplinary actions,
TDCJ’s evidence supports its position that no adverse employment
action occurred.
Although this evidence indicates Robison did not experience
adverse employment action, he complains on appeal that the report
raises genuine issues of material fact about whether he
5
experienced retaliation. In particular, Robison relies on
statements made by his supervisor, Ms. Benita Garrison.
According to the report, “Ms. Garrison stated that in her
opinion, this incident and another disciplinary case issued [sic]
Mr. Robison, is just a form of harassment and retaliation by
Dalton Domingue and Evelyn Shaffer.” But even viewed in
Robison’s favor, this statement does not show that any adverse
employment action was taken against Robison. Instead, the
statement reflects Garrison’s opinion about why Robison was
initially charged with substandard duty performance.
Because TDCJ met its burden in moving for summary judgment,
Robison was required to present competent summary judgment to
raise a genuine issue of material fact about whether he suffered
adverse employment action to survive summary judgment. In his
response to TDCJ’S motion, Robison11 stated that he would submit
evidence at trial to refute TDCJ’s report. He failed, however,
to submit any affidavits or other documentation to support his
claims. Because he failed to submit documentary evidence that
raised a question about whether he experienced adverse employment
action, the district court properly determined that no evidence
existed of adverse employment action and granted TDCJ’s motion.
For that reason, this court AFFIRMS the judgment of the district
11
Although he was initially represented by counsel,
Robison’s attorney withdrew from representation after mediation
failed and Robison proceeded pro se. Robison responded to TDCJ’s
motion in that capacity.
6
court.
AFFIRMED.
7