Summary
stating that "while placing document reprimands in an employee's file may increase the chance that she might eventually suffer an adverse employment action, it did not rise to the level of an ultimate employment decision"
Summary of this case from Overton v. City of ArlingtonOpinion
3:00-CV-0739-G
August 30, 2001
MEMORANDUM ORDER
Before the court is the motion of the defendant United Parcel Service ("UPS") for summary judgment on all the claims asserted by the plaintiff Jerry Luckman ("Luckman"). For the following reasons, the motion is granted.
I. BACKGROUND
Luckman is a black, naturalized United States citizen of Ethiopian origin. Plaintiff's First Amended Original Complaint and Demand for Jury Trial ("Complaint") at 2, 7. He began working as an aircraft mechanic for UPS in February 1991. Transcript of Answers and Deposition of Jerry Luckman ("Luckman Deposition"), Exhibit B to Defendant's Appendix of Evidence in Support of Motion for Summary Judgment ("Defendant's Appendix") at 40. In March 1998, Luckman transferred to UPS's southwest region air hub in Dallas-Ft. Worth. Id. at 56. Luckman claims that UPS discriminated against him during the time he was working in Dallas by (1) suspending him for three weeks while he underwent psychological and physical examinations, (2) assigning him to work alone while other mechanics worked in groups of two or more, and (3) issuing him written warning letters in retaliation for filing previous charges of discrimination. Complaint at 6-7. In its defense, UPS alludes to two instances involving Luckman that raised questions about his competency and ability to communicate with co-workers. Defendant's Brief in Support of Motion for Summary Judgment ("Motion for Summary Judgment") at 5-7.
Luckman alleges several incidents that occurred between 1991 and 1993 while working for UPS in Ontario, California and Detroit, Michigan. Complaint at 2-5. However, the facts Luckman relies upon in his claim all occurred after he moved to Dallas in 1998. Id. at 6-8. Therefore, for the present motion, the court will not consider any facts occurring before 1998.
The first instance occurred on February 12, 1999, after Luckman prepared an airplane for departure. Luckman Deposition, Defendant's Appendix at 78. Luckman and another mechanic, Mark Collins ("Collins"), were assigned to perform what is known as a "push back" of an airplane. Id. at 78-82. This is normally done by connecting a tractor to the nose wheel of the airplane with a "tow bar" and pushing the airplane back before the airplane can taxi to the runway. Declaration of Kenneth Costa ("Costa Declaration"), Exhibit A to Defendant's Appendix at 3. On this occasion, however, the tow bar was not properly connected to the tractor, and the plane detached and rolled backward. Id. at 3-4; Luckman Deposition, Defendant's Appendix at 80. UPS asserts that Luckman attempted to attach the tow bar to the tractor but failed and then neglected to communicate this fact to Collins, who was driving the tractor. Costa Declaration, Defendant's Appendix at 4. After an investigation, Costa determined that both Luckman and Collins were responsible for violating this important safety procedure. Id. Thus, both employees were issued warning letters for the incident. Id.; Luckman Deposition, Defendant's Appendix at 82.
Kenneth Costa ("Costa") is employed by UPS as the Southwest Area Manager. Costa Declaration, Defendant's Appendix at 1.
Later the same month, another incident occurred involving Luckman and a tow bar. Id. On February 21, 1999, Luckman was assigned, along with a different mechanic, Jay Makarevich ("Makarevich"), to perform a push back of another airplane. Costa Declaration, Defendant's Appendix at 4. When Luckman arrived at the airplane, Makarevich had already attached a white tow bar to the tractor and the aircraft. Id. Luckman stated that the white tow bar was too difficult to use and requested that Makarevich replace it with the yellow tow bar. Id. at 4-5; Luckman Deposition, Defendant's Appendix at 82-83. Makarevich, seeing no difference between the two tow bars except their color, refused to make the switch. Luckman Deposition, Defendant's Appendix at 83. After Makarevich completed the push back, Luckman attempted to remove the white tow bar by himself but failed. Id. He eventually needed assistance. Id. The following day, Luckman asked Costa for training on the use of the white tow bar. Costa Declaration, Defendant's Appendix at 5. Luckman claimed the white tow bar was different from the yellow tow bar because it did not function properly, which caused him to be unable to operate it. Id.; Luckman Deposition, Defendant's Appendix at 82-83. However, UPS equipment personnel examined the white tow bar and found that it "did function properly and . . . there were no differences in functioning from other tow bars." Costa Declaration, Defendant's Appendix at 5. Costa concluded that the yellow and white tow bars were essentially the same. Id. Because Luckman could operate only one of these two virtually identical tow bars, UPS doubted Luckman's ability to safely perform his job. Id.
After these two incidents, due to the fact that the job of aircraft mechanic is safety sensitive, id. at 6, UPS management conferred with the company medical services department and decided to suspend Luckman with pay until his communication skills and cognitive ability could be evaluated. Id. at 5-6. After the psychological examination, the examining doctor determined Luckman was mentally competent to return to work but did express some concern about a scar on Luckman's head. Id. at 6. The scar was found to be of no concern. Id.; Luckman Deposition, Defendant's Appendix at 85-86. Accordingly, UPS allowed Luckman to return to work in March 1999. Costa Declaration, Defendant's Appendix at 6. Although Luckman was held out of service for three weeks, he received full compensation during that time. Id.; Luckman Deposition, Defendant's Appendix at 75, 93.
On March 23, 1999, Luckman filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), in which he alleged that UPS discriminated against him — in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") — by holding him out of service as a result of the February 12, 1999 tow bar incident, while Collins, a white co-worker also responsible for the incident, was not suspended or subjected to any psychological evaluations. Luckman Deposition, Defendant's Appendix at 97 (Deposition Exhibit 6). On March 24, 1999, the EEOC dismissed the charge and issued a right to sue letter. Id. at 100 (Deposition Exhibit 8).
On March 30, 1999, Luckman filed a charge with the Texas Commission on Human Rights ("TCHR") and the EEOC alleging that UPS discriminated and retaliated against him for filing his March 23, 1999 charge by assigning him to work alone. Id. at 101-102 (Deposition Exhibit 9). The TCHR dismissed this charge and issued a right to sue letter on October 7, 1999. Id. at 90, 106-107 (Deposition Exhibit 13).
Finally, Luckman filed another charge of discrimination with the TCHR and EEOC on May 3, 1999 alleging that written warnings he received on April 12, April 16, and April 26, 1999 were in retaliation for his previous charges of discrimination. Id. at 108 (Deposition Exhibit 15). Before either the TCHR or EEOC could issue findings and/or a right to sue letter on this claim, Luckman filed this case in a Dallas County district court on December 13, 1999. Notice of Removal at 1. In this case, Luckman alleges causes of action under Title VII, 42 U.S.C. § 1981, and Texas Labor Code § 21.051 on three theories: (1) disparate treatment, (2) retaliation, and (3) harassment resulting in a hostile work environment. Complaint at 1, 6-8. UPS now moves for summary judgment on all of these claims.
II. ANALYSIS A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movant makes such a showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c).
The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir. 1986).
Once the movant makes this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this burden, the "opponent must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249.
While all of the evidence must be viewed in a light most favorable to the motion's opponent, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant's summary judgment burden. Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary judgment in favor of the movant is proper if, after adequate time for discovery, the motion's opponent fails to establish the existence of an element essential to his case and as to which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
B. Title VII 1. Failure to Comply with Administrative Prerequisites
Luckman must comply with the administrative prerequisites set forth in 42 U.S.C. § 2000e, et seq., prior to commencing a Title VII action in federal court. See Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996). Luckman was required, pursuant to 42 U.S.C. § 2000e-5(f)(1), to file his Title VII claim within ninety days of receiving his right-to-sue letter from the EEOC. See id. In the case at bar, the EEOC issued its first right-to-sue letter on March 24, 1999. Luckman Deposition, Defendant's Appendix at 100. However, Luckman did not file this case until December 13, 1999 — 264 days later. See Notice of Removal at 1. Although the exact date that Luckman received this notice is uncertain, it is clear that the filing of this suit was untimely with respect to his initial charge of discrimination, i.e., the charge complaining of the three week suspension.
Furthermore, Luckman has not received a right-to-sue letter, from either the EEOC or TCHR, for his third charge of discrimination. "A Title VII plaintiff may bring a civil action in district court alleging claims of employment discrimination only after exhausting his administrative remedies and obtaining a right-to-sue letter from the EEOC." Lee v. Kroger Co., 901 F. Supp. 1218, 1224 (S.D. Tex. 1995) (citations omitted). Since neither the EEOC nor the TCHR has issued a right-to-sue letter for this charge before the original complaint was filed, Luckman cannot pursue in this case his claim that he received written warnings in retaliation for filing previous charges of discrimination. Because Luckman has failed to satisfy the administrative prerequisites for filing suit on his first and third charges of discrimination, the court would be justified in dismissing those claims sua sponte. Even if the court assumes arguendo, however, that all of Title VII's administrative requirements were satisfied, summary judgment on those claims would still be appropriate for the reasons that follow.
Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin in federal and private employment. Fitzgerald v. Secretary, United States Department of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997). Luckman may prove his claim of discrimination by either direct or circumstantial evidence. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714 n. 3 (1983). Direct evidence of employment discrimination is "evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Mooney v. Aramco Services Co., 54 F.3d 1207, 1217 (5th Cir. 1995) (quoting Brown v. East Mississippi Electric Power Association, 989 F.2d 858, 861 (5th Cir. 1993)). Where there is no direct evidence of race or national origin discrimination, the court must apply the three-step analysis utilized by the Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973). See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-12 (1993).
The court will evaluate Luckman's Title VII and 42 U.S.C. § 1981 claims together because in race discrimination cases the same legal analysis applies to both causes of action. See LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n. 2 (5th Cir. 1996).
In the first step, Luckman must establish a prima facie case of discrimination. Pratt v. City of Houston, Texas, 247 F.3d 601, 606 (5th Cir. 2001); Haynes v. Pennzoil Company, 207 F.3d 296, 300 (5th Cir. 2000) (citations omitted). If Luckman presents a prima facie case, a presumption of discrimination arises. Pratt, 247 F.3d at 606. At the second step, UPS can rebut this presumption of discrimination by offering a legitimate, nondiscriminatory reason for the employment decision of which Luckman complains. Id. If UPS satisfies this burden of production, Luckman's prima facie case dissolves, Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir. 1993), and the case proceeds to the third step of the analysis. At this third stage, the burden is on Luckman to prove that the reasons offered by UPS are pretexts for race and national origin discrimination. See Pratt, 247 F.3d at 606.
When the analysis has proceeded to this third step, Luckman — to avoid summary judgment — must produce evidence from which a reasonable factfinder could find "that the employer's reasons were not the true reason for the employment decision and that unlawful discrimination was." Bodenheimer, 5 F.3d at 957 (emphasis in original). Accord Moore v. Eli Lilly and Company, 802 F. Supp. 1468, 1471-74 (N.D. Tex. 1992), aff'd, 990 F.2d 812, 816 n. 24 (5th Cir.), cert. denied, 510 U.S. 976 (1993); Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993). See St. Mary's, 509 U.S. at 507-08.
In certain cases, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000).
2. Disparate Treatment
Luckman argues that direct evidence of national origin discrimination exists in this case, making the McDonnell Douglas test inapplicable. Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgement ("Response Brief") at 1. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) ("the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination."). Luckman submits as direct evidence a memo from a company nurse to the doctor who performed Luckman's psychiatric evaluation. Memorandum from Jo Anne Vaccaro, RN to Dr. Ron Ziegler, Plaintiff's Appendix in Support of His Response and Brief in Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Appendix") at 51 (Deposition Exhibit 54). In this memorandum, one sentence does mention Luckman's national origin. Id. The sentence states: "[Luckman] is of Ethiopian descent and has a marked accent." Id. Luckman argues that this sentence is direct proof of UPS's discriminatory intent. Plaintiff's Response to Defendant's Motion for Summary Judgement ("Response") at 5-6. However, this comment merely states a fact. It does not prove a discriminatory animus without inference or presumption. See Mooney, 54 F.3d at 1217. Because it does not constitute direct evidence of discrimination, Luckman must, in order to survive summary judgment, rely on the three-step McDonnell Douglas analysis.
In the first step, Luckman must establish a prima facie case of disparate treatment by showing that (1) he belongs to a protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) others similarly situated were treated more favorably. Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.), cert. denied, 525 U.S. 1000 (1998). UPS does not contest that Luckman belongs to a protected class or was qualified for his position. UPS does, however, aver that none of Luckman's allegations amount to an adverse employment action. Motion for Summary Judgment at 10-11. The court agrees.
An adverse employment action is "a material adverse change in the terms and conditions of employment . . ." Cochrane v. Houston Light and Power Company, 996 F. Supp. 657, 663 n. 8 (S.D. Tex. 1998) (quoting Crady v. Liberty National Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). As a general rule, employment actions are adverse only where pay, benefits, or level of responsibility are affected. Watts v. Kroger Company, 170 F.3d 505, 512 (5th Cir. 1999). The employment actions Luckman complains of are that he was suspended with pay for a period of time to undergo a psychological evaluation, forced to work alone, and issued warning letters. Complaint at 6-7.
UPS's decision to hold Luckman out of service while he underwent a psychological evaluation is not an adverse employment action because Luckman received full compensation during the time he was off work. Luckman Deposition, Defendant's Appendix at 73, 75, 93. Even though some courts have deemed an employee suspension to be an adverse employment action, see, e.g., McGarity v. Mary Kay Cosmetics, No. 3:96-CV-3413-R. 1998 WL 50460, *3 (N.D. Tex. Jan. 20, 1998) (citations omitted), the Fifth Circuit has held that it was not an adverse employment action when an employer placed an employee on paid leave and required him to undergo a psychological exam. Breaux v. City of Garland, 205 F.3d 150, 157-58 (5th Cir.), cert. denied, 531 U.S. 816 (2000). Luckman offers no proof that he suffered any detriment as a result of being held out of work for psychological testing. Like the plaintiff in Breaux, Luckman experienced no adverse action with respect to his leave and, therefore, did not suffer an adverse employment action.
Luckman fares no better in his claim that he was subjected to an adverse employment action when assigned to work alone. By his own admission, he has suffered no loss of wages as a result of having to work alone. Luckman Deposition, Defendant's Appendix at 73, 75, 93. Additionally, Luckman still works for UPS and maintains the same position and level of responsibility as he did before these incidents. Id. at 74-75. Luckman has not proved he suffered any economic loss or other detriment as a result of working alone. Id. at 73, 75-76. Despite all this, Luckman contends that the "undesirable and hazardous work assignments" given to him constitute adverse employment actions. Response Brief at 3. Luckman bases this contention on case law from the Second and Third Circuits. Id. However, controlling authority from the Fifth Circuit has stated repeatedly that "undesirable work assignments are not adverse employment actions." Southard v. Texas Board of Criminal Justice, 114 F.3d 539, 555 (5th Cir. 1997) (citations omitted); see also Bennett v. Total Minatome Corporation, 138 F.3d 1053, 1060 n. 10 (5th Cir. 1998). The Fifth Circuit has not addressed whether hazardous work assignments constitute adverse employment actions. But because Luckman has failed to produce any evidence showing that working alone is more hazardous, the court does not reach that question. On the present record, the court cannot conclude that assignments to work alone are adverse employment actions.
The written warnings Luckman received on April 12, April 16, and April 26, 1999 have also not been shown to be adverse employment actions. In Larry v. North Mississippi Medical Center, 940 F. Supp. 960, 965 (N.D. Miss. 1996), aff'd in part, 156 F.3d 181 (5th Cir. 1998) (table), the court held that a written warning cannot constitute an adverse employment action when it did not result in a demotion or a lowering of wages. Similarly, Luckman never lost any wages nor was he fired or demoted. Luckman Deposition, Defendant's Appendix at 73-75. Therefore, these warning letters issued to Luckman were not adverse employment actions. Since none of these employment decisions of which Luckman complains (suspension with pay while being tested, assignment to work alone, receipt of warning letters) constitutes an adverse employment action, Luckman has failed to establish a prima facie case of disparate treatment, so the court need not proceed to the second and third steps of the McDonnell Douglas analysis.
3. Retaliation
The three-part McDonnell Douglas test applicable to Title VII disparate treatment cases also applies to Title VII unlawful retaliation cases. See Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). Thus, once again, Luckman must establish a prima facie case of retaliation. Id. To establish a prima facie case of unlawful retaliation under Title VII, Luckman must show that (1) he engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. Id. It is undisputed that the previous charges of discrimination Luckman filed with the EEOC are actions protected by Title VII, but Luckman's prima facie case fails once more because he cannot show that UPS took an adverse employment action.
To satisfy this second prong of the prima facie case, Luckman must show that UPS made an "ultimate employment decision" adverse to him. Mattern v. Eastman Kodak Company, 104 F.3d 702, 705-07 (5th Cir.), cert denied, 522 U.S. 932 (1997). An ultimate employment decision is one that would significantly change an employee's employment status, "such as hiring, granting leave, discharging, promoting, and compensating." Id. at 707 (quoting Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995)). The employment decisions Luckman complains of are that he was forced to work alone and issued warning letters in retaliation for filing previous charges of discrimination. Complaint at 6-7.
The written warnings Luckman allegedly received are not ultimate employment decisions. These warnings are precisely the type of employment action that Mattern held insufficient to give rise to a Title VII claim. There, the court noted that while placing documented reprimands in an employee's file may increase the chance that she might eventually suffer an adverse employment action, it did not rise to the level of an ultimate employment decision. Mattern, 104 F.3d at 708. According to the court in Mattern, "Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Id. at 707 (quoting Dollis, 11 F.3d at 781-82). The court went on to warn against "expand[ing] the definition of `adverse employment action' to include events such as disciplinary filings, supervisor's reprimands, and even poor performance by the employee — anything which might jeopardize employment in the future." Id. at 708 (emphasis in original). Therefore, like the written reprimand in Mattern, the warning letters issued to Luckman do not constitute ultimate adverse employment decisions.
Likewise, Luckman's assignments to work alone are not ultimate employment decisions. Although Luckman may perceive working alone to be unfavorable or undesirable, it does not alter his employment status and, therefore, is not an ultimate and "tangible" employment action. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998) ("A tangible employment action constitutes a significant change in employment status . . ."). Due to the fact that Luckman has not submitted proof that he experienced an adverse employment action, the court need not consider the causation element of a prima facie case.
"The term `tangible employment action' appears to be the functional equivalent of the Fifth Circuit's terms `ultimate employment decision' and `adverse employment action.'" Pfeil v. Intecom Telecommunications, 90 F. Supp.2d 742, 747 (N.D. Tex. 2000).
4. Hostile Work Environment
Luckman alleges he was subjected to racial harassment which created a hostile work environment at UPS. Complaint at 7-8. To establish a prima facie case of a racially hostile work environment, Luckman must show that (1) he belongs to a protected class, (2) he was subject to unwelcome harassment, (3) the harassment was based on race, (4) the harassment affected a term, condition or privilege of employment, and (5) the employer knew or should have known about the harassment and failed to take prompt remedial action. Skinner v. Brown, 951 F. Supp. 1307, 1321 (S.D. Tex. 1996) (citation omitted), aff'd, 134 F.3d 368 (5th Cir. 1997) (table).
To avoid summary judgment, Luckman's hostile work environment claim under Title VII must raise an issue of fact pointing to the existence of a work environment "so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers. . . ." Vaughn v. Pool Offshore Company, 683 F.2d 922, 924 (5th Cir. 1982) (quoting Rogers v. Equal Employment Opportunity Commission, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972)). Incidents of harassment "must be more than sporadic and the plaintiff must demonstrate that management failed to take adequate steps to remedy the situation." Erebia v. Chrysler Plastic Products Corporation, 772 F.2d 1250, 1254 (6th Cir. 1985), cert denied, 475 U.S. 1015 (1986). "For . . . harassment to be actionable, it must be sufficiently severe or pervasive `to alter the conditions of [Luckman's] employment and create an abusive working environment.'" Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (citation omitted); see also Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) ("Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview.").
Luckman avers that he was "always assigned . . . to work on an aircraft alone, whereas, all other aircraft mechanics under [Ken Jackson's] supervision, all of whom are [w]hite, are assigned to work two or more on an aircraft." Complaint at 7. Even if this averment is assumed to be true, Luckman cannot avoid summary judgment on this issue because the actions alleged are not severe or pervasive enough to alter the terms and conditions of his employment. While Luckman does claim to have suffered "mental anguish and emotional distress as a result of the acts complained of in [his] complaint," id. at 8, an objective, reasonable person would not find such a work assignment to be hostile or abusive.
To be actionable, workplace harassment must be both subjectively and objectively hostile and abusive. Harris, 510 U.S. at 21-22. In making this determination, the court looks to the totality of the circumstances, considering, inter alia, "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. at 23. The Supreme Court has been clear that the conduct must be "extreme" before it will create an objective change in the terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Having to work alone falls well short of the "extreme" conduct required for a hostile work environment. UPS argues, and Luckman offers no evidence to contest, that other mechanics are also assigned to work alone. Defendant's Reply Brief In Support of Motion for Summary Judgment ("Reply") at 4. Once Luckman approached management to express concerns about working alone, UPS provided him a cell phone and two-way radio to enable him to communicate with other mechanics. Costa Declaration, Defendant's Appendix at 3. Lastly, Luckman even admits the frequency of these assignments was not as he alleged. Instead of always being assigned to work alone, see Complaint at 7, Luckman acknowledged that he occasionally worked with other mechanics. Luckman Deposition, Defendant's Appendix at 66. These work assignments were simply not severe or pervasive enough to create an objectively hostile or abusive work environment.
III. CONCLUSION
Luckman's allegations that he was suspended with pay for a period of time to undergo a psychological evaluation, forced to work alone, and issued warning letters are not adverse employment actions as that term is defined by the Fifth Circuit. Thus, he cannot establish a prima facie case of disparate treatment or retaliation. Luckman does not offer sufficient evidence to dispute any material issue of fact. Therefore, UPS' motion for summary judgment is GRANTED. Judgment will be entered that Luckman take nothing on his claims in this case.