                    IN THE UNITED STATES COURT OF APPEALS

                                FOR THE FIFTH CIRCUIT

                                       No. 02-41332
                                     Summary Calendar

DONALD DAVILA,
                                                                          Plaintiff-Appellant,

versus

THOMAS A. WHITE, SECRETARY OF THE ARMY,
                                                                         Defendant-Appellee.


                       Appeal from the United States District Court
                            for the Southern District of Texas
                                     (C-01-CV-130)
                     ________________________________________
                                    February 13, 2003

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM::

Plaintiff-Appellant asserts that the district court erred in granting summary judgment as

to his retaliatory hostile work environment claim. This Court affirms.

                              I. FACTS AND PROCEEDINGS

         After filing a number of administrative complaints regarding racial

discrimination, Plaintiff-Appellant Donald Davila (“Davila”) filed a Title VII suit against

Defendant-Appellee Thomas E. White, Secretary of the Army, (“Defendant”) in federal

district court in April 1996, alleging national origin hostile environment discrimination.

In May 1997, the jury found that the Defendant had intentionally discriminated against



*
 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 R. 47.5, this Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH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.


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Davila by creating a hostile environment, but did not award any damages. The district

court entered a Final Judgment on May 14, 1997, with Davila taking nothing.

       Following the May 1997 trial, Davila asserts that he was subjected to a retaliatory

hostile work environment. Davila provides a litany of actions and statements of his

superiors and colleagues in support of his claim. For the purposes of this appeal, it is

useful to categorize Davila’s allegations according to whether they relate to promotion,

compensation, granting leave, or the creation of a hostile work environment:

   (1) Promotion: (a) denials of opportunities for overtime, training, and technically

       advanced work; (b) delays in the provision of annual performance reviews;

   (2) Compensation: (a) bureaucratic snafus and delays in the resolution of pay

       disputes; (b) reviews and denials of compensatory time for the union work

       performed by Davila;

   (3) Granting leave: (a) a single dispute over whether paperwork was appropriately

       filed for leave taken by Davila;

   (4) Creation of a hostile work environment: (a) being forced to see an on-site

       counselor on one occasion after his superiors complained to the counselor that

       they feared Davila would “go postal”; (b) constant monitoring of Davila by

       superiors even when they were not responsible for supervising him; (c) use of

       profane language and minor confrontations with colleagues; (d) complaints by

       colleagues about the quality of Davila’s work; (e) denial of opportunity to work

       the night shift instead of the day shift.

       Davila filed suit in federal district court in March 2001, alleging that he was

subjected to a retaliatory hostile work environment. The Defendant filed a Motion for




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Summary Judgment in December 2001, and the Magistrate Judge recommended that

Davila’s retaliatory hostile work environment claim be dismissed. The district court

adopted the Magistrate Judge’s recommendation and dismissed Davila’s claim, finding

that the Fifth Circuit did not recognize a cause of action for retaliatory hostile work

environment under Title VII.

                               II. STANDARD OF REVIEW

       “A grant of summary judgment is reviewed de novo . . . Summary judgment is

appropriate when there ‘is no genuine issue as to any material fact and the moving party

is entitled to a judgment as a matter of law.’” Quorum Health Res., L.L.C. v. Maverick

County Hosp. Dist., 308 F.3d 451, 458 (5th Cir. 2002) (internal citations omitted)

(quoting Conoco, Inc. v. Medic Systems, Inc., 259 F.3d 369, 371 (5th Cir. 2001)). This

Court “must view facts and inferences in the light most favorable to the party opposing

the motion. A factual dispute precludes a grant of summary judgment if the evidence

would permit a reasonable jury to return a verdict for the nonmoving party.” Id. (internal

citations omitted).

                                      III. ANALYSIS

       The sole issue presented on appeal is whether the district court erred in granting

summary judgment as to Davila’s retaliatory hostile work environment claim.

       Davila claims that the Defendant unlawfully retaliated against him after he filed a

Title VII action. 42 U.S.C. § 2000e-3(a) (West 1994 & Supp. 2001). To establish a prima

facie case of retaliation, Davila must demonstrate: (1) he engaged in an activity protected

by Title VII; (2) that an adverse employment action followed; and (3) that there was




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some causal connection between the activity and the adverse action. Collins v. Baptist

Memorial Geriatric Center, 937 F.2d 190, 193 (5th Cir. 1991).

        First, by filing administrative complaints and a lawsuit alleging discrimination

based on race and national origin, Davila engaged in an activity protected by Title VII.

Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d 334, 339 (5th Cir. 1999) (holding

that plaintiff’s complaints to the EEOC and filing of a lawsuit were protected activities);

Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995) (holding that “[t]here can be no

question that . . . filing an administrative complaint is clearly protected activity”).

        Second, this Court must consider whether the actions and statements of Davila’s

superiors and colleagues constituted adverse employment actions. This Court held that

only “ultimate employment decisions" are considered adverse employment actions under

Title VII. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997). Ultimate

employment decisions include promotion, compensation, and granting leave. Id. (citing

Dollis, 77 F.3d at 782). Under this rubric, this Court must consider whether the evidence

relating to promotion, compensation, and granting leave to Davila constitutes evidence of

adverse employment actions. Id.; Fierros v. Tex. Dep't of Health, 274 F.3d 187, 193 (5th

Cir. 2001) (holding that denials of pay increases and “similar actions” constitute ultimate

employment decisions). The Supreme Court clarified that courts must consider the broad

range of activities involved in promotion, compensation, and granting leave. AMTRAK v.

Morgan, 536 U.S. 101, 123-24, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002) (internal

citations omitted) (holding the language used in Title VII “evinces a congressional intent

‘to strike at the entire spectrum of disparate treatment of men and women’ in

employment”). However, the evidence must be evaluated to ensure that it does not have




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merely a “tangential effect upon those ultimate [employment] decisions.” Dollis, 77 F.3d

at 782.

          Denials of promotions, pay increases, and leave constitute ultimate employment

decisions, but efforts to obtain work toward promotions, pay increases, or leave do not.

Mattern, 104 F.3d at 707; Fierros, 274 F.3d at 193. Davila’s allegations fall into the

latter category. Denials of overtime, training, and technically advanced work are not the

equivalent of denials of promotions. Mattern, 104 F.3d at 708. Bureaucratic snafus,

delays in their resolution of pay disputes, and reviews and denials of compensatory time

are not the same as denials of pay increases. Fierros, 274 F.3d at 194. Disputes over

whether the plaintiff was authorized to take leave are not the same as denials of leave

altogether. Mattern, 104 F.3d at 708. Therefore, none of the evidence as to promotion,

compensation, and granting leave rises to the level of ultimate employment decisions. Id.

at 707.

          The remaining evidence relates to the creation of a hostile work environment.

This Court held that “[h]ostility from fellow employees . . . and resulting anxiety, without

more, do not constitute ultimate employment decisions, and therefore are not . . . adverse

employment actions.” Id. However, the Supreme Court held that Title VII is not narrowly

focused on specific employment decisions with immediate consequences, but instead on

“the entire spectrum of disparate treatment of men and women in employment, which

includes requiring people to work in a discriminatorily hostile or abusive environment . .

. Thus, when the workplace is permeated with discriminatory intimidation, ridicule, and

insult, that is sufficiently severe or pervasive to alter the conditions of the victim's

employment and create an abusive working environment, Title VII is violated.” Morgan,




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536 U.S. at 123-24 (internal citations omitted). Accordingly, this Court must consider

whether the evidence presented as to the creation of a hostile work environment

demonstrated that the inappropriate behavior of Davila’s superiors and colleagues was

sufficiently severe or pervasive to alter the conditions of Davila’s employment and create

an abusive working environment. Fritiofson v. Alexander, 772 F.2d 1225, 1238 (5th Cir.

1985) (holding that intervening Supreme Court decisions require reconsideration of prior

practice); EEOC v. Luce, Forward, Hamilton & Scripps, 303 F.3d 994, 1002 (9th Cir.

1992) (holding that reconsideration is necessary when intervening Supreme Court

decisions undermine existing precedents). In considering this question, this Court must

“look to ‘all the circumstances,’ 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.’” Morgan, 536 U.S. at 124 (quoting Harris v. Forklift Systems, Inc., 510

U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993)).

       Davila presents evidence that his superiors and colleagues did not appreciate his

willingness to litigate and had concerns about his mental stability and workmanship.

However, he presents no evidence that the actions and statements of his superiors and

colleagues were sufficiently severe or pervasive to alter the conditions of Davila’s

employment and create an abusive working environment. Id. at 123-24. In particular, the

allegations made by Davila involved no physical threats, infrequent and minor incidents,

and a rotating cast of twelve alleged victimizers, all of whom share the same ethnicity as

Davila. Id. at 124. Furthermore, the alleged discrimination does not seem to have

unreasonably interfered with Davila’s work performance. Id. For these reasons, the




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evidence as to the creation of a hostile work environment does not constitute evidence of

adverse employment actions. Id.

       Viewing the evidence in the light most favorable to Davila, there is no genuine

issue as to any material fact. Quorum Health, 308 F.3d at 458. Therefore, the Defendant

is entitled to a judgment as a matter of law. Id. Accordingly, the district court’s grant of

summary judgment in favor of the Defendant is AFFIRMED.




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