Filed: Mar. 07, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS March 7, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk 06-30653 RICKEY TRAVIS, Plaintiff-Appellant, v. JOHN E. POTTER, POSTMASTER GENERAL, U S POSTAL SERVICE, Defendants-Appellees. Appeal from the United States District Court for the Western District of Louisiana, Shreveport (04-CV-899) Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM:* This appeal is from a district court’s grant of
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS March 7, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk 06-30653 RICKEY TRAVIS, Plaintiff-Appellant, v. JOHN E. POTTER, POSTMASTER GENERAL, U S POSTAL SERVICE, Defendants-Appellees. Appeal from the United States District Court for the Western District of Louisiana, Shreveport (04-CV-899) Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM:* This appeal is from a district court’s grant of ..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 7, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
06-30653
RICKEY TRAVIS,
Plaintiff-Appellant,
v.
JOHN E. POTTER,
POSTMASTER GENERAL, U S POSTAL SERVICE,
Defendants-Appellees.
Appeal from the United States District Court for the
Western District of Louisiana, Shreveport
(04-CV-899)
Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
This appeal is from a district court’s grant of summary
judgment in favor of an employer in a discrimination case. Finding
no error, we AFFIRM.
I. BACKGROUND
Rickey Travis was employed by the United States Postal Service
(USPS) for seventeen years. On June 7, 2000, Travis sustained a
*
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this opinion should not be published and is not precedent except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.
shoulder injury while on duty. The Office of Workers’ Compensation
Programs accepted the injury on September 12, 2000. Travis’s
physician determined that the condition was permanent. In February
of 2002, Travis accepted a permanent modified job offer from the
USPS.
Over the years, the employer disciplined Travis for attendance
problems such as leaving work without notifying management, failure
to report to work and failing to request leave in advance.1 The
employer also disciplined Travis for engaging in altercations with
supervisors and co-workers. In March 1998, Travis had a verbal
confrontation with the Supervisor of Customer Services. On another
occasion, Travis became upset with a Human Resources Specialist and
hit the side of a file cabinet. At one point, Travis had a verbal
confrontation with members of management at the Shreveport Post
Office. Also, at a different time, using threatening and coarse
language, Travis accused his direct supervisor of being a liar.
On June 25, 2002, Travis and a co-worker, Freddie Robinson,
were involved in an altercation. Robinson provided a written
statement reporting that Travis had shoved him with Travis’s chest
and shoulder and threatened him using vulgar and offensive
language. The employer had the “Threat Assessment Team”
investigate the incident, and the team concluded that the “incident
1
However, during administrative proceedings it was
determined that Travis should receive compensation for leave
without pay.
2
more than likely occurred as reported by Freddie Robinson.”
Travis’s supervisor requested a “Notice of Proposed Removal” for
Travis. The National Association of Letter Carriers filed a formal
grievance on Travis’s behalf. Subsequently, the arbitrator ruled
that the evidence did not support an “intolerable threat of
violence necessary to propose removal.” Nonetheless, the
arbitrator concluded that “there was clearly evidence that there
was sufficient cause to justify discipline.” Ultimately, the
arbitrator found that “the evidence supports a suspension of
fourteen (14) days . . . . Further, this employee has a problem
with management of anger and his response to authority. His return
to work will be further conditioned on his participation in the
Employee Assistance Program for a period of no less than 6 months.”
In 2004, Travis filed the instant employment discrimination
suit against the Postmaster General, alleging claims under Title
VII, the Rehabilitation Act of 1973, and the Louisiana Anti-
Discrimination Statute. Pursuant to the Postmaster’s motion, the
district court granted summary judgment with respect to the hostile
work environment claim related to race, retaliation claim and
claims under Louisiana law.2 Subsequently, the district court
granted summary judgment on the remaining claim of disability
2
In his appellate brief, Travis does not argue racial
discrimination claim, and thus, that claim is not before us. Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Similarly,
because Travis does not challenge the district court’s ruling that
the claim under Louisiana law is barred by sovereign immunity, we
do not reach it.
3
discrimination and hostile work environment under the
Rehabilitation Act.3 Travis now appeals pro se.
II. ANALYSIS
A. STANDARD OF REVIEW
This Court reviews a district court’s grant of summary
judgment de novo, applying the same standards as the district
court. E.g., Hirras v. Nat'l R.R. Passenger Corp., 95 F.3d 396,
399 (5th Cir. 1996). Summary judgment is proper if the record
reflects “that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
B. REHABILITATION ACT CLAIM
Travis asserts that his employer treated him differently
because of his disability. More specifically, it appears he is
arguing that because of his disability he was disciplined more
harshly than his co-workers. To obtain relief under the
Rehabilitation Act, a plaintiff “must prove that (1) he is an
individual with a disability; (2) who is otherwise qualified; (3)
who worked for a program or activity receiving Federal financial
assistance; and (4) that he was discriminated against solely by
reason of her or his disability.” Hileman v. City of Dallas, 115
F.3d 352, 353 (5th Cir. 1997) (internal quotation marks and
3
The district court’s opinion provides that Travis was placed
on disability retirement in August 2005.
4
citations omitted).
In the instant case, the district court found that Travis had
failed to demonstrate that he was disabled. Nonetheless, the
district court concluded that even if Travis could establish that
he was disabled, he failed to show that the complained of actions
were based solely on that disability. For purposes of this appeal,
we will assume arguendo that Travis established that he was
disabled. It is undisputed that Travis’s shoulder injury was
sustained in June of 2000. This injury is the reason he was placed
on permanent modified limited duty. By Travis’s own admission,
the disciplinary actions he complains of began in 1995. It is
clear that the complained of disciplinary actions taken by the
employer began prior to the onset of his alleged disability. Under
these circumstances, he has failed to create a genuine issue of
material fact regarding whether his employer’s actions against him
were based solely on his disability. The district court properly
granted summary judgment as to this claim.
C. HOSTILE WORK ENVIRONMENT
Travis claims these same employer’s actions created a hostile
work environment. To survive summary judgment, Travis must create
a fact issue on each of the elements of a disability-based hostile
work environment claim: (1) he is a member of a protected group;
(2) he was subjected to harassment; (3) that the complained of
harassment was based solely on his disability; (4) that the
5
harassment affected a term, condition, or privilege of employment;
and (5) that the employer knew or should have known of the
harassment and failed to take prompt, remedial action. Soledad v.
U.S. Dep’t of Treasury, 304 F.3d 500, 506 & n.8 (5th Cir. 2002).
Further, “the disability-based harassment must be sufficiently
pervasive or severe to alter the conditions of employment and
create an abusive working environment.” Flowers v. Southern
Regional Physician Services, Inc.,
247 F.3d 229, 236 (5th Cir.
2001) (internal quotation marks and citation omitted). Once again
assuming Travis has shown that he was disabled, as discussed above,
he has failed to show that his employer’s actions were based solely
on his disability. The district court properly granted summary
judgment as to this claim.
D. RETALIATION
Travis asserts that the employer’s actions were in retaliation
for his filing an EEOC complaint. To demonstrate a claim for
retaliation, Travis must prove (1) that he engaged in an activity
that was protected; (2) an adverse employment action occurred; and
(3) a causal connection existed between the participation in the
activity and the adverse employment action. Webb v. Cardiothoracic
Surgery Assoc., 139 F.3d 532, 540 (5th Cir. 1998).
Travis correctly asserts that he engaged in a protected
activity when he filed a complaint with the EEOC. Dollis v. Rubin,
77 F.3d 777, 781 (5th Cir. 1995) (explaining that “[t]here can be
6
no question that [the employee’s] retaliation claims satisfy the
first element of the analysis, filing an administrative complaint
is clearly protected activity”).
However, the complained of actions taken by the employer began
before the filing of the complaint with the EEOC on July 4, 2003.4
Travis has not shown a causal connection existed between the filing
of the EEOC in 2003 and any adverse employment action. Moreover,
the employer has proffered a non-discriminatory reason for his
actions: Travis’s documented confrontations with supervisors and
co-workers. Travis, who has the burden of proving the proffered
reason is pretextual, has failed to do so. The district court
properly granted summary judgment as to this claim.
AFFIRMED.
4
See District Court Op. at 10 n.5 (finding “no competent
summary judgment evidence that Travis filed any other EEOC
complaints”) (citing Malacara v. Garber, 353 F.3d 393, 405 (5th
Cir. 2003); Fed.R.Civ.P. 56).
7
