                                                          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that this opinion should not be published and is not precedent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.




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