The opinion
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 02-30614
(Summary Calendar)
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CARL A. ROBERTSON, on behalf of himself and all others similarly
situated,
Plaintiff - Appellant,
versus
L S U MEDICAL CENTER; ET AL,
Defendants,
BOARD OF SUPERVISORS OF LOUISIANA STATE
UNIVERSITY AND AGRICULTURAL AND MECHANICAL
COLLEGE; MERVIN TRAIL, Chancellor; RON GARDNER, Vice-
Chancellor; FLORA G MCCOY, Human Resources Manager;
ALBERT LAVILLE, Louisiana State University Police; LESLYE A
BASS, Chief of Police.
Defendants - Appellees.
Appeal from the United States District Court
For the Eastern District of Louisiana
USDC No. 99-CV-1688-T
November 20, 2002
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant CarlRobertson (“Robertson”) appeals the district court’s grant of summary
judgment in favor of the individual defendants, Mervin Trail, Ronald Gardner, Albert Laville, Flora
G. McCoy, and Leslye A. Bass (collectively, “Appellees”), named in Robertson’s suit under 42
U.S.C. §§ 1981 and 1983 against Louisiana State University Medical Center (“LSU”) and Appellees,
Robertson’s superiors at LSU.1 Robertson claims he was constructively discharged from his position
with the LSU campus police in retaliation for having opposed unlawful race-based discrimination by
Appellees, and that this constructive discharge constituted an adverse employment action that violated
his First Amendment rights.
The district court granted summary judgment in favor of Appellees pursuant to FED. R. CIV.
P. 56 (C) because “Robertson has failed to satisfy the heightened pleading requirement under § 1983,
because he cannot prove that he was constructively discharged, and because [Appellees] are entitled
to qualified immunity.”
We review de novo a district court’s grant of summary judgment. Copeland v. Wasserstein,
Perella & Co., Inc., 278 F.3d 472, 477 (5th Cir. 2002). Summary judgment is proper only “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the moving party is entitled
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1
The district court had previously dismissed the claims against the individual defendants under
42 U.S.C. §§ 1981 and 1983, reaso ning that those claims were pre-empted by Title VII.
Subsequently, we held that the district court erred in that regard, and we remanded the matter back
to the district court solely for adjudication of the claims against the individual defendants under 42
U.S.C. §§ 1981 and 1983.
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to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
“A First Amendment retaliation claim must include facts showing that: (1) t he employee
suffered an adverse employment decision; (2) the employee’s speech involved a matter of public
concern; (3) the employee’s interest in commenting on matters of public concern outweighs the
defendants’ interest in promoting efficiency; and (4) the employee’s speech must have motivated the
defendants’ action.” Bradshaw v. Pittsburg Indep. Sch. Dist., 207 F.3d 814, 815-16 (5th Cir. 2000)
(emphasis added). The adverse employment action claimed by Robertson is his alleged constructive
discharge. To establish constructive discharge, Robertson “must prove that his working conditions
were so difficult or unpleasant that a reasonable person in his shoes would have felt compelled to
resign.” Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 242 (5th Cir. 1993). A claim of
constructive discharge requires “‘a greater severity or pervasiveness of harassment than the minimum
required to prove a hostile work environment.’” Benningfield v. City of Houston, 157 F.3d 369, 378
(5th Cir. 1998) (quoting Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992)).
Here, Robertson’s factual allegations, and the evidence he produces in support of those
allegations, fail to raise a genuine issue as to whether Appellees’ alleged retaliatory actions were
anything other than normal actions taken to maintain a professional working environment. Robertson
alleges that Appellees constructively discharged him by 1) refusing to allow him informally swap
overtime hours with a coworker, 2) refusing to give him a day of leave to stay home with his sick
daughter, 3) ordering him to remove a personal refrigerator and microwave from his workspace, 4)
granting him approval for annual leave only one day before the leave began, 5) ordering Robertson
to extinguish a cigarette he was smoking in violation of LSU policy, 6) reassigning him from one
post, the eye clinic, to another post, the Emergency Command Post, 7) questioning him after he failed
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to report for an overtime shift, and 8) failing to make him aware of several opportunities to work
overtime. Robertson has not produced any evidence to suggest that any one of these incidents
resulted in a formal reprimand or official disciplinary action against him. Neither has Robertson
produced any evidence to suggest that any one of these incidents resulted in a reduction in his salary
or benefits, a demotion, a reduction in his job responsibilities, or a reassignment to menial or
degrading work.2 Thus, Robertson has not produced any evidence tending to show that a reasonable
person in his situation would have felt compelled to resign.
Because Robertson has failed to raise a genuine issue as to his alleged constructive discharge,
Appellees are entitled to summary judgment pursuant to FED. R. CIV. P. 56 (C) on Robertson’s
retaliation claim, which requires proof of an adverse employment decision.3 The district court’s grant
of summary judgment in favor of Appellees is AFFIRMED.
2
Robertson produced a number of letters he wrote to Appellees, as well as few pages from
his personal, hand-written journal. However, these letters and entries provide only conclusory
allegations of harassment, covert discrimination, deprivation of First Amendment rights, and failure
to investigate his complaints properly.
3
The dist rict court also reasoned that Robertson’s claims should be dismissed because his
claims were not sufficiently detailed to meet the heightened pleading standard of § 1983, and even
if Robertson’s claims were sufficiently detailed, Appellees are entitled to qualified immunity in this
case. Because we hold that Appellees are entitled to summary judgment pursuant to FED. R. CIV. P.
56 (C) on Robertson’s retaliation claim, it is unnecessary for us to discuss whether Robertson met the
heightened pleading standard or whether Appellees are entitled to qualified immunity in this case.
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