                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                                                               F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                               January 29, 2007
                              FOR THE FIFTH CIRCUIT
                                                                           Charles R. Fulbruge III
                               __________________________                          Clerk

                                      No. 05-51259
                                   Summary Calendar
                               __________________________


JAMES L. BRYAN,
                                                                      Plaintiff-Appellant,

versus

MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF
HOMELAND SECURITY,
                                                                     Defendant-Appellee.

                 ___________________________________________________

                       Appeal from the United States District Court
                            for the Western District of Texas
                                    (No. 3:04-CV-258)
                 ___________________________________________________


Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
                 *
PER CURIAM:

         James L. Bryan appeals the district court’s grant of summary judgment against him

on his Title VII claims. For the following reasons, we affirm.

                             I. FACTS AND PROCEEDINGS

         Bryan, a white male born in 1956, was employed as a pilot for the Bureau of


         *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Immigration and Customs Enforcement, Department of Homeland Security (“Customs”).

Bryan was assigned to the El Paso Air Unit, where his supervisors were John Studinarz

and David Lent. In 2001, Bryan informally complained to a government employment

discrimination counselor that a co-worker, Robert Wimpy, used racially-disparaging

remarks in Bryan’s presence and that the remarks offended him, in part, because his wife

was black. Wimpy received a letter of reprimand later in 2001, and it appears that he has

not made further disparaging remarks in Bryan’s presence.

       In January 2003, Bryan formally complained to an employment discrimination

counselor that younger pilots were receiving so-called collateral duties, including the duty

of instructor pilot, that he, an Age Discrimination Employment Act (“ADEA”) protected

person, did not receive. Bryan also complained that he was the victim of retaliation for

reporting Wimpy’s behavior, asserting that his work environment had become hostile.

       In May 2003, the Customs’ Disciplinary Review Board (“DRB”) informed Bryan of

a proposed disciplinary action against him. The bases for this action were that Bryan was

absent without leave (“AWOL”), misused a government-owned vehicle by temporarily

appropriating it for personal use, failed to follow supervisory instructions, and made a

false statement to a supervisor. Bryan contested the proposed action by asserting that it

was in response to Bryan’s prior employment discrimination complaints.

       After receiving notice of the DRB proposal, Bryan filed another discrimination

complaint in July 2003, the substance of which was essentially the same as the January 2003

complaint. Ultimately, in September 2003, Charles Stallworth, who reviewed the DRB


                                             2
proposal, accepted the proposal without the AWOL allegation and suspended Bryan for

thirty days. Bryan appealed to the Merit Systems Protection Board (“MSPB”), which

affirmed Stallworth’s decision.

       This lawsuit ensued with Michael Chertoff, Secretary of the Department of

Homeland Security, as defendant. The district court granted Chertoff’s motion to strike

Bryan’s summary judgment evidence and granted summary judgment on Bryan’s Title VII

discrimination, retaliation, and retaliatory hostile work environment claims.

                                      II. DISCUSSION

A.     Motion to strike

       This court reviews a motion to strike evidence for abuse of discretion. See Sierra

Club, Lone Star Chapter v. Cedar Point Oil, 73 F.3d 546, 569 (5th Cir. 1996). Rarely will a

district court’s decision constitute reversible error. See id.; see also Jenkins v. Ball Corp.,

140 F. App’x 519, 523 (5th Cir. 2005). Bryan complains that the district court abused its

discretion when it granted Chertoff’s motion to strike Bryan’s summary judgment

evidence, in which Chertoff argued that Bryan’s evidence did not satisfy Rule 902 of the

Federal Rules of Evidence and Rule 56(e) of the Federal Rules of Civil Procedure. Bryan

argues that his evidence, which consisted mostly of the disciplinary proceedings record

developed before the MSPB, satisfied the relevant evidentiary and procedural rules.

However, considering the expansive discretion afforded the district court in evidentiary

matters and that Bryan has made no persuasive demonstration that this ruling prohibited

him from proffering evidence to rebut Chertoff’s summary judgment motion, we find no


                                              3
reversible error.

B.     Bryan’s Title VII claims

       The district court’s grant of summary judgment is reviewed de novo. Storebrand

Ins. Co. U.K., Ltd. v. Employers Ins. of Wausau, 139 F.3d 1052, 1055 (5th Cir. 1998). Bryan

argues that the district court erred in granting summary judgment on his discrimination,

retaliation, and retaliatory hostile work environment claims.

(1)    Discrimination claims

       Bryan’s alleged both age and race discrimination, the latter based on his marriage

to a black woman. The district court found that Bryan had failed to establish a prima facie

case of age and race discrimination because the decision not to assign Bryan instructor

pilot duties was not an adverse employment action. Bryan argues that the Supreme Court’s

decision in Burlington Northern & Sante Fe Railway Co. v. White, 126 S. Ct. 2405, 2414

(2006), which rejected the Fifth Circuit’s “ultimate employment decision” standard for a

retaliation claim, makes the district court’s grant of summary judgment on his

discrimination claims erroneous.

       We need not assess Burlington Northern’s effect on Bryan’s discrimination claims

because as Chertoff correctly contends, Bryan has not established his prima facie case. An

ADEA plaintiff must connect his protected status to actionable harm by offering evidence

that he was fired and replaced by someone younger, was treated less favorably than

employees who were similarly situated yet not members of a protected class, or was

otherwise discharged because of his age. See West v. Nabors Drilling USA, Inc., 330 F.3d


                                            4
379, 384 (5th Cir. 2003); see also Morrison v. Weyerhaeuser, 119 F. App’x 581, 584 (5th Cir.

2004). Bryan does not allege discharge, so the inquiry focuses on whether other similarly

situated employees were treated differently. At summary judgment, Chertoff offered

evidence indicating that pilots who were older than Bryan had received the collateral

duties Bryan sought. Moreover, Bryan has not pointed to any individuals who were

similarly situated, i.e., had the same disciplinary record as him, but were younger and yet
                                   1
received the instructor pilot duty. See Bryant v. Compass Group USA, Inc., 413 F.3d 471,

478 (5th Cir. 2005). As to the race claim, Bryan offers only his conclusory assertions

connecting his spouse’s race to the collateral duties. Douglass v. United Servs. Auto. Ass’n,

79 F.3d 1415, 1429 (5th Cir. 1996) (“In short, conclusory allegations, speculation, and

unsubstantiated assertions are inadequate to satisfy the nonmovant's burden.”). We affirm

the district court’s grant of summary judgment on Bryan’s age and race discrimination

claims.

(2)    Retaliation claim

       To establish a prima facie case of Title VII retaliation, the plaintiff must show that

(1) he engaged in a protected activity; (2) he suffered an adverse employment action; and



       1
        To the extent that Bryan’s age discrimination claim includes the argument that
other, younger pilots had used government vehicles for personal reasons without
authorization yet not been punished, Bryan only offers the conclusory testimony of one co-
worker who stated that some “individuals” had used the vehicles without punishment.
Such testimony is insufficient since it did not state how the individuals were situated
similarly to Bryan. See Hibernia Nat’l Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (“[A]
summary assertion made in an affidavit is simply not enough evidence to raise a genuine
issue of material fact.”).

                                             5
(3) a causal link existed between the protected activity and the adverse action. Gee v.

Principi, 289 F.3d 342, 345 (5th Cir. 2002).

       Bryan’s retaliation claims arise from events that occurred around the time of Bryan’s

filing of two discrimination complaints, the first in January 2003 and the second in July

2003. His contention is that the initiation of disciplinary proceedings, of which he was

notified in May 2003, and the end result of those proceedings, which was a thirty day

suspension announced in September 2003, were retaliation for his complaints. Bryan also

contends that not receiving the instructor pilot duties was retaliation.

       The district court granted summary judgment in favor of Chertoff, finding that the

September suspension could not have been retaliation for the July complaint because the

July complaint was filed after the disciplinary proceeding leading to the September

suspension had been initiated. As for whether the disciplinary proceeding was causally

connected to Bryan’s January 2003 complaint, the district court found that it was not

because Chertoff “would have undertaken the thirty (30) day suspension even absent

[Bryan’s discrimination-reporting] activity.” The district court credited Chertoff’s evidence

that Studinarz and Stallworth did not have knowledge of Bryan’s complaints at times at

which an inference of retaliatory causation would have been supported.

       On appeal, Bryan asserts that the disciplinary proceedings were initiated soon after

his January 2003 complaint (four months) and that this proximity coupled with the

repeated instances of harassment that he suffered both before and after the complaint are

sufficient to establish prima facie causation. Bryan does not challenge the district court’s


                                               6
conclusion with regard to Studinarz’s and Stallworth’s knowledge of the employment

discrimination complaints. Moreover, Bryan makes only passing references to disparaging

racial remarks made by his co-worker, Wimpy, in 2001, and he has clearly established no

retaliatory nexus between these comments and Bryan’s discrimination complaints filed
       2
later. In addition, there was a legitimate non-retaliatory reason for the disciplinary actions;

Bryan does not contest that he committed the violations for which Stallworth suspended

him.

           Bryan also argues that the decision not to assign Bryan flight instructor duties was

retaliation for filing discrimination complaints. Bryan, however, has not demonstrated a

connection between the two, nor has he offered any evidence to rebut the legitimate non-

retaliatory reasons for the decision. Mark Schindler, the Customs official responsible for

assigning the flight instructor duties in question, testified that in 2000—before Bryan had

lodged any employment discrimination complaints—Schindler received feedback from

Bryan’s supervisors that Bryan would not make a good instructor pilot. Bryan had a

disciplinary record. He has not identified any evidence to the contrary. We affirm the

district court’s grant of summary judgment on Bryan’s retaliation claim. See Swanson v.

Gen. Servs. Admin., 110 F.3d 1180, 1185 (5th Cir. 1997).



           2
        Also, Bryan has not shown any connection between his informal complaint
regarding Wimpy’s racial remarks in 2001 and the September 2003 suspension. His
conclusory assertions regarding intervening harassment do not connect these events, which
are separated by two years. See Harvey v. Stringer, 113 F. App’x 629, 631 (5th Cir. 2004)
(concluding that no causation existed where ten months had elapsed between the protected
activity and the alleged retaliatory action).

                                                7
(3)    Retaliatory hostile work environment

       Bryan asserts a hostile work environment that was retaliation for his protected

activity, filing discrimination complaints. Chertoff moved for summary judgment on the

grounds that Bryan had not made out a prima facie case of retaliatory hostile work

environment. The district court, however, declined to reach the substantive issues in

Chertoff’s motion, concluding that no such cause of action exists in the Fifth Circuit.

       On appeal, Bryan urges the panel to recognize a retaliatory hostile work

environment claim. Bryan asserts that the weight of authority supports this view and that

the Supreme Court’s Burlington Northern decision counsels in favor of recognizing such
           3
a claim. We need not decide whether to recognize a retaliatory hostile work environment

claim or, if such a claim existed, what effects Burlington Northern were to have on the

plaintiff’s burden to prove actionable harm. Bryan cannot establish a prima facie case of

hostile work environment, even under the Burlington Northern standard.

       A prima facie case of hostile work environment requires the plaintiff to prove, inter

alia, that the employee was subject to unwelcome harassment and that the employer

should have known of the harassment and failed to take prompt remedial action. Felton

v. Polles, 315 F.3d 470, 484 (5th Cir. 2002). Bryan offers only cursory assertions that



       3
        At least the Second, Sixth, Seventh, Ninth, and Tenth Circuits have adopted this
cause of action. See Ray v. Henderson, 217 F.3d 1234, 1244–45 (9th Cir. 2000); Morris v.
Oldham County Fiscal Court, 201 F.3d 784, 791 (6th Cir. 2000); Richardson v. N.Y. State
Dep’t of Correctional Servs., 180 F.3d 426, 446 (2d Cir. 1999); Gunnell v. Utah Valley State
Coll., 152 F.3d 1253, 1264–65 (10th Cir. 1998); Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir.
1996).

                                             8
Chertoff’s actions have resulted in a hostile work environment. For example, Bryan

complains that Studinarz yelled loudly in the workplace; however, according to Bryan’s

deposition testimony, Studinarz’s yelling was directed at all employees. Bryan also

complains that Lent removed Bryan’s flight jacket from his work space. Such an action is

trivial and cannot support a hostile work environment claim. See Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998) (noting that Title VII does not protect against the “ordinary

tribulations of the workplace”); see also Burlington Northern, 126 S. Ct. at 2407 (“An

employee's decision to report discriminatory behavior cannot immunize that employee

from those petty slights or minor annoyances that often take place at work and that all

employees experience.”). To the extent that Bryan complains of Wimpy’s racially

insensitive remarks delivered in 2001 as constituting a hostile work environment, these

occurred before Bryan filed any employment discrimination complaints, and Chertoff took

prompt actions to correct the problem. Accordingly, Bryan has not established a prima

facie case of hostile work environment, and the district court’s grant of summary judgment

was proper.

                                    III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s decision to strike Bryan’s

summary judgment evidence and AFFIRM the district court’s grant of summary judgment

on Bryan’s discrimination, retaliation, and retaliatory hostile work environment claims.




                                             9
